Energy Policy: Coal

Lord Ezra: asked Her Majesty's Government:
	What role they envisage for coal in future energy supplies for the United Kingdom.

Lord Davies of Oldham: My Lords, the Government strongly believe that there will be a continuing role for coal in meeting this country's energy needs for some years to come, provided that its potential environmental impacts can be managed satisfactorily. That is being considered as part of the current review of energy policy.

Lord Ezra: My Lords, I thank the Minister for that encouraging Answer. Does he recall that the energy review indicated that the share of coal in electricity would decline from the current level of about 30 per cent to half that during the next 15 years? In view of the need to achieve diversity of energy supply and to reduce increased dependence on imported gas, I am sure that the Minister agrees that that trend should be reversed. Furthermore, does he agree that the most effective way of doing that is to press ahead with the development of clean coal technology much more effectively than at present and to establish demonstration plants without further delay? The technology has now been proven, including the extraction of CO2 and its storage.

Lord Davies of Oldham: My Lords, the noble Lord is a strong advocate of that position, which he has sustained in the House for many years. I am pleased to say that the validity of his arguments is accepted. Coal—it needs to be cleaner coal—has a role to play, and it is clear that we have to meet emission targets; to do so, we need to advance with the technology, particularly in the burning of coal in power stations where it has a crucial role to play. I am pleased to say to him that, although he will recognise that we need a diversified series of energy sources, coal certainly has its role to play.

Lord O'Neill of Clackmannan: My Lords, does my noble friend agree that the pursuit of clean-coal technology has more than a touch of alchemy about it at present? None of the technologies has been properly tried in a commercial context, and even some of the research on technologies has evaded the capabilities and wealth of the United States and Japan to bring them to commercial reality. It is dangerous to talk piously about coal in the way that we were able to do in the past because the existing plant is of such an age. To bolt on the new technologies would not be possible in terms of the finances and the running of the coal-fired power stations.

Lord Davies of Oldham: My Lords, that is the other side of the case—showing just how difficult it is, despite the advocacy of the noble Lord, Lord Ezra. The Government can accept the arguments and the desirability of what ought to be achieved, but actually realising it, as my noble friend Lord O'Neill emphasised, involves very significant challenges. We can of course deal with aspects of power station emissions to increase the use of coal. We are seeking to achieve that so that coal will play a significant role in the generation of electricity. In a more general sense, my noble friend is right: none of the rather more ambitious strategies regarding cleaner coal has reached the market and been market tested.

Lord Jenkin of Roding: My Lords, some of us who had the advantage of hearing from Ms Barbara McKee from the American Department of Energy a few days ago have been startled by the extent of the American research into what the noble Lord, Lord Ezra, calls clean coal. Is not the key to the future not the bolt-on technology mentioned by the noble Lord, Lord O'Neill, but pre-gasifying the coal before it ever goes into a furnace? That is the technology that will allow much more coal to be used in future.

Lord Davies of Oldham: My Lords, I am in danger of becoming a table tennis ball between two erudite table tennis bats on the issue of technology, as both noble Lords are better versed in it than I can hope to be. There are optimistic aspects to the American research, and there is no doubt that the Americans consider it significant, with regard to the world's energy supplies, to make improvements in this area. However, we can invest only a fraction of what the Americans can put into such extensive research.

Lord Redesdale: My Lords, how much are the Government spending on research and development on carbon storage, capture and sequestration? Without a massive increase, that technology will be pie in the sky.

Lord Davies of Oldham: My Lords, that is another dimension of expenditure; the noble Lord is absolutely right. I do not have the figures for expenditure on that to hand, because we are working against a considerable number of uncertainties. I wanted to reassure the noble Lord, Lord Ezra, and the House that the Government see the advantages of coal in supplying our energy needs, but, under present technologies and use, that is a fairly limited future, and we will need breakthroughs in research if coal is to have a future beyond that.

Lord Davies of Coity: My Lords, my noble friend will be aware that I come from a family of three generations of miners. We talk about producing more coal to meet our energy requirements, but does my noble friend agree that if more and more coal is produced, we will send more and more people back into the belly of the Earth in dangerous conditions where accidents happen?

Lord Davies of Oldham: My Lords, first, we are talking about an industry that is a fraction of what the coal industry was in its great days. Then, there were hundreds of pits; now we are talking about fewer than 20 mines. The great expansion of coal production is likely to be through open-cast and surface mining, rather than the sinking of shafts, so the ghastly conditions in which so many miners had to work, which may noble friend attributes to coal, are likely to be rather different.

Licensing Act 2003

Lord Avebury: asked Her Majesty's Government:
	What arrangements they are making under the Licensing Act 2003 to restrict the sale of alcohol at designated sporting stadiums.

Lord Davies of Oldham: My Lords, the Licensing Act 2003 allows the police, interested parties and others to make representations on new licence applications and applications for licence variations and to request a review of the licence if problems related to the licensing objectives occur. Where appropriate, such representations may result in licensing conditions that restrict the sale of alcohol. That provides a targeted approach to the regulation of alcohol at sporting stadiums that builds on the additional restrictions in the Sporting Events (Control of Alcohol etc.) Act 1985 as amended by the Licensing Act 2003.

Lord Avebury: My Lords, will the noble Lord confirm that under the Act as originally passed, directors of football clubs and their guests were treated the same as ordinary football fans but that, when representations were made by the Football Association, the Minister not only decided not to bring parts of the Act into force, but undertook to introduce new primary legislation to restore the privileges that the directors had lost? Is there any reason to suppose that directors and their guests are likely to be better behaved if they are allowed to drink at the same moments as ordinary mortals, and should not the Act be left as it stands?

Lord Davies of Oldham: My Lords, the problem with the Act, as the noble Lord knows only too well, is that, whereas it sought to reduce restrictions, it inadvertently increases them in that respect. That was not the intention of the Bill or of all the publicity that attended it. Nor had we thought that that would be the effect until lawyers got to work on the extreme detail of the Act. Therefore, unless we propose some change, we will have a tighter position than we had before.
	As for whether it is fair that those in hospitality boxes should have different conditions from others at sporting events, particularly at the major football grounds, it is not only about directors and their guests. As the noble Lord will know, the economics of our major football clubs depend on providing a substantial range of such boxes for a very wide range of clients, and the privileges that, he says, are not open to ordinary mortals extend to a significant number of people attending grounds, who are expected to pay a pretty heavy premium.

Lord Campbell of Alloway: My Lords, in this context, is there a viable distinction between a designated sporting stadium and a supermarket for the purposes of the law?

Lord Davies of Oldham: My Lords, I am one of those who do not go to supermarkets for entertainment. I certainly go to football grounds, and I imagine that I have that in common with a certain percentage of the population. The difference is straightforwardly a question of the consumption of alcohol. The law allows the sale of alcohol at supermarkets, but we have not yet detected an enormous problem with the hours of drinking on the premises, congenial though those supermarkets are. Supermarkets are not really equipped for that purpose, but football grounds with hospitality grounds are well equipped for it.

Viscount Falkland: My Lords, is the Minister aware that on racecourses in recent years there has been a considerable increase in alcohol misuse, as it is called, which is evident mostly in the cheaper enclosures but is still evident in the more expensive enclosures, even if it is not very visible there? Will the Minister say whether there is any awareness of that in view of the important developments at Ascot racecourse and the opening of what will probably be the greatest racecourse in Europe, if not in the world? Should not that authority be made aware of the dangers of alcohol and the differences between drinking habits in different enclosures?

Lord Davies of Oldham: My Lords, let us be clear about why the restrictions are in place regarding certain sports stadia: they apply to football grounds. They have been imposed because alcohol played its part in riotous behaviour at some of our grounds during the 1980s and early 1990s. I have not yet seen a riot at Ascot, nor do I anticipate one under our present more liberal licensing laws. However, I can assure the noble Viscount that if untoward events take place at our racecourses, we will of course address the issue.

Baroness Trumpington: My Lords, just to even things up, will the Minister accept that, speaking personally I have never had any difficulty, sitting in the most expensive seats, drinking a great deal?

Lord Davies of Oldham: My Lords, it would be a brave official who sought to intervene in such circumstances.

Lord Hoyle: My Lords, would it not be advisable for football to take a lesson from Rugby League where, despite the sale of alcohol at the grounds, no trouble occurs and the fans are friends after the match?

Lord Davies of Oldham: My Lords, I have no doubt that football could learn a considerable number of lessons from Rugby League. Certainly, the reason why the restrictive legislation does not apply to Rugby League is that we have not had problems at Rugby League grounds.

Lord Glentoran: My Lords, I have one point of real concern about the situation. Can the Minister tell me how an organisation such as the Football Association is able to influence the Government to such an extent that they are willing to change an Act of Parliament and the Minister concerned writes to the FA saying, "I will do this"? I do not believe that that is very constitutional. Can the noble Lord also tell us how and when it is to be done?

Lord Davies of Oldham: My Lords, the Football Association, the Premier League and the Football League have all taken a keen interest and made representations on the matter. Like any other affected interest, such bodies will occasionally make representations to government. We get them from organisations that are considerably more powerful than the Football Association, the Premier League and the Football League. The issue for government is to make a judgment on whether such representations have validity. In this Act we intended to relax the restrictions on hospitality boxes. The fact that the football industry has pointed out that the effect of the legislation has been to restrict the provision gives us cause to think again. I cannot give the noble Lord a precise date at this point, but we are looking at amending the Act.

Afghanistan: NATO Support

Lord Astor of Hever: asked Her Majesty's Government:
	What steps they are taking to ensure that other NATO allies provide full support during the United Kingdom command of the Security Assistance Force in Afghanistan.

Baroness Crawley: My Lords, before I answer the Question, perhaps I may say that my thoughts and those, I am sure, of the entire House, are with the family and friends of the British soldiers who have died over the past two days in Iraq. They were Lance Corporal Alan Douglas from the 1st Battalion The Highlanders and Corporal Gordon Pritchard from the Royal Scots Dragoon Guards.
	My right honourable friends the Secretary of State for Foreign and Commonwealth Affairs and the Secretary of State for Defence are actively engaged with our NATO allies to encourage them to provide full support during the United Kingdom command of the International Security Assistance Force in Afghanistan. The UK is closely engaged in the NATO force generation process, which will co-ordinate allies' military contributions to the ISAF. Right now, the UK is holding a major conference at which the international community will set out its broader engagement in Afghanistan over the next five years.

Lord Astor of Hever: My Lords, Members on these Benches join the noble Baroness in sending our condolences to the families of the two soldiers killed in Iraq. Our thoughts are also with the three soldiers injured yesterday.
	A vital element of the NATO mission to Afghanistan is the training and equipping of the Afghan army and police. Their ability to take over will affect our exit strategy. Is the noble Baroness satisfied that our allies are as fully prepared as we are to contribute to those efforts?

Baroness Crawley: My Lords, the noble Lord, Lord Astor, is absolutely right to state that the development of the Afghan national security forces is crucial to the eventual stability of Afghanistan and allowing our own forces to disengage. He will know that the United States has taken the lead on training the new Afghan national army. There are now 34,000 officers, NCOs and soldiers serving in the Afghan national army. We also assist with that; for instance, we have Afghan cadets at Sandhurst.
	The police reform about which the noble Lord asked is being led by the Germans, who are leading the international effort. The first stage of the process is complete, and over 60,000 police have received entry-level training.

Lord Garden: My Lords, from these Benches, we, too, express our sympathy to the families of the two corporals who died in the service of their country.
	The NATO Secretary-General has argued that common NATO funding for the operations taking place in Afghanistan would make it much more attractive for member states to volunteer their forces. Given the level at which Britain is engaged with NATO, that would obviously be of great advantage to us. Are the Government arguing for common NATO funding for operations; and if not, why not?

Baroness Crawley: My Lords, we work closely with our allies in NATO over a range of operational and funding matters. It is up to individual countries in NATO to decide what they can offer in budgets, personnel and equipment, and of course the more agreement that we can have the better. I will write in detail to the noble Lord about the Government's position, particularly on bringing budgets together under NATO. However, we want operational matters to be as co-ordinated as possible. I know that that is an area where the noble Lord has a great deal of interest.

Earl Attlee: My Lords, has the NATO commander been given a mission statement; and if so, what is it?

Baroness Crawley: My Lords, I presume that the noble Earl, Lord Attlee, is asking me about command in regard to ISAF. Yes, of course we have a mission statement. We have clear goals as to why ISAF is in Afghanistan. We are there because we rightly want to spread the influence of the democratically elected Afghan Government to all parts of Afghanistan. We want to facilitate the security sector reform in which I know the noble Earl will be interested, and of course we want to help with reconstruction and eradicating the poppy economy.

Lord Chidgey: My Lords, your Lordships will no doubt be aware of reports that our NATO allies the United States are proposing to use aerial crop spraying in support of the military operations in Afghanistan. Your Lordships will also be aware of a similar exercise in Vietnam that led to fertile lands being made barren for decades, which would of course fly in the face of our objectives in Afghanistan. Are the Government aware of those proposals; and if so, what discussions have they had with our American allies to convince them to plan otherwise?

Baroness Crawley: My Lords, I am not aware of discussions on crop spraying. If there is information in the public domain that I can offer the noble Lord I certainly will. We are very much of the opinion in NATO that we are there to facilitate the work that the Afghans themselves are doing to get rid of the opium poppies.

Lord Stoddart of Swindon: My Lords, the Afghan president in a broadcast lately has said that he expects foreign troops, including British troops, to be in Afghanistan for between five and 10 years before local security forces can take over. Do the Government agree with that estimate; and if so, what is the likely cost to the British taxpayer?

Baroness Crawley: My Lords, it is not for me to speculate on the exact length of time, but we certainly will not cut and run from Afghanistan. We are there to see a job done, which may take several years. We said in the Statement last week that we have a budget of £1 billion for a deployment that will last for more than three years. We are looking to the future in substantial terms, but I am not in a position to give details.

Earl Attlee: My Lords, is it correct that the two operations in Afghanistan will be subsumed into one operation?

Baroness Crawley: My Lords, I assume that the noble Earl, Lord Attlee, is referring to the NATO operation and the coalition operation—Operation Enduring Freedom. The position of NATO is that we can see benefits in working closely. NATO's revised operational plan seeks to ensure far greater synergy between the NATO and coalition operations. The NATO operation is under various UN resolutions. Operation Enduring Freedom is under the invitation of the Afghan Government. The plan incorporates clear command arrangements for co-ordination and, where necessary, for sorting out any conflicts of operations under the respective missions, but there will not be a complete merger yet.

Palestine: Elections

Lord Dykes: asked Her Majesty's Government:
	Whether they propose to hold discussions with the Government of the United States on the results of the election to the Palestine Legislative Council on 25 January; and, if so, when.

Lord Triesman: My Lords, the Foreign Secretary raised this matter with the United States Secretary of State, Condoleezza Rice, on 30 January. The United States and the United Kingdom have welcomed the holding of the first legislative elections in the Occupied Territories since 1996 and respect and accept the results of those elections. The US and the UK have made clear that being elected carries responsibilities and that all political parties should renounce violence and acknowledge Israel's right to exist.

Lord Dykes: My Lords, I thank the Minister for that Answer. Bearing in mind that President Mahmoud Abbas also still has his own constitutional and legislative powers and allowing for the amazing selectivity of President George Bush and his own definitions of democracy and what is right and wrong in international law, will the Government make sure that they have further discussions with the US Government to persuade them to persuade Israel to start making moves on withdrawing military forces and on reducing the checkpoints in the Occupied Territories from now on, before the Israeli elections, to facilitate the workings of the new Palestinian Parliament, in particular also the transport of Members of that Parliament from Gaza?

Lord Triesman: My Lords, the discussions with the United States will go on through the quartet and, I have no doubt, at a bilateral level. The discussions held at quartet level are consistent in saying that all parties—I repeat, all parties—must respect the processes that are set out in the road map for the Middle East. All parties have their obligations and have to try to make sure that democratic institutions thrive in what has been a very difficult environment. The balanced view that is taken in that road map is precisely the view that everyone—Israel and the Palestinian Authority—must respect.

Lord Howell of Guildford: My Lords, it is some time before the new Hamas Government take over. Would it not be wise on this issue and on the question of financing to wait a few weeks to see how the Hamas Government will adjust their views? In looking at the flow of funds to the Palestinian Authority, would it not also be wise to refer to the considerable wealth of the Arab Gulf states around, which is at the moment diverted in rather small amounts to Palestine, and encourage them to ante up and pay from the huge revenues that they have gained from the higher oil price? Is that not the way that greater support for the Palestinian Authority might best be developed?

Lord Triesman: My Lords, the advice given to wait and see and to reflect calmly, certainly in advance of the general elections in Israel as well, is the wisest advice that anyone could take. We urge all parties not to regard days like these to be ones where lines are drawn in the sand rather than to see what progress can be made. I also agree with the noble Lord about the obligations of other countries with respect to financial support. Some of the other major and very wealthy countries in the Middle East, and going further through to the Gulf, have made obligations which they have not yet met. Were those obligations to have been met, the financial position would be such that the Palestinian Authority would not be experiencing what is close to a financial meltdown.

Lord Blaker: My Lords, is not one of the main problems the tendency of Hamas to believe in violence? Would it not help reduce its feelings towards violence if Israel were to stop settling more people in the settlements, and stop building the barrier wall—both of which are contrary to international law and to the plans of the quartet?

Lord Triesman: My Lords, I have on a number of occasions expressed the Government's view about the illegality of the route of the wall. I do not know if repeating that view today would help, but all sides—Hamas especially, now it has the responsibility not just of being a movement but of becoming a government—have key responsibilities for the security and peace of the region.

Lord Hylton: My Lords, will the Minister and all his colleagues use every opportunity to persuade all parties not to set down pre-conditions for negotiations? Does he agree that it would be helpful if nobody attempted to humiliate Hamas on the morrow of its remarkable electoral success?

Lord Triesman: My Lords, it has been elected and election results should be respected by democrats. I make the commonplace observation to your Lordships' House that our expectation is that everybody will choose either a peaceful path or a violent one. We urge no more condition on anybody than that they choose peace over violence.

Lord Phillips of Sudbury: My Lords, I revisited Israel, east Jerusalem and the West Bank, just before the Palestinian elections, and was taken round by five marvellous Jewish-Israeli NGOs. The message I got from them was loud and clear, quite apart from the evidence of one's own eyes. Unless the issues of the headlong settlement of the West Bank, the cantonisation of the West Bank, the 600 checkpoints in the West Bank and the humiliation of the Palestinians in the West Bank are addressed urgently, there is no hope whatever of keeping power, within the Hamas confederacy, in the hands of the moderates. Would the Government please urge the Americans to do something effective and visual about the road map to that end?

Lord Triesman: My Lords, we and others have urged that the solution to the problems of the region lie in a two-state solution. A two-state solution must have a contiguous Palestinian state. I have said at this Dispatch Box, and only repeat it because the question is asked again, that the developments east of Jerusalem are fundamentally unhelpful to the creation of a contiguous state. We will argue that, and continue to do so.

Scottish Parliament (Candidates) Bill [HL]

Lord Foulkes of Cumnock: My Lords, I beg to introduce a Bill to amend Section 5 of the Scotland Act 1998, to prevent persons standing as both a candidate on a regional list and for a constituency in elections to the Scottish Parliament. I beg to move that this Bill be now read a first time.
	Moved, That the Bill be now read a first time.—(Lord Foulkes of Cumnock.)
	On Question, Bill read a first time, and ordered to be printed.

London Local Authorities and Transport for London Bill

Lord Brabazon of Tara: My Lords, I beg to move that this Bill be now read a second time.
	Moved, that the Bill be now read a second time.—(The Chairman of Committees.)
	On Question, Bill read a second time, and committed to a Select Committee.

Terrorism Bill

Read a third time.
	Clause 2 [Dissemination of terrorist publications]:

Lord Bassam of Brighton: moved Amendment No. 1:
	Page 2, line 43, leave out from "offence" to "if" in line 5 on page 3 and insert "if he engages in conduct falling within subsection (2) and, at the time he does so—
	(a) he intends an effect of his conduct to be a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism;
	(b) he intends an effect of his conduct to be the provision of assistance in the commission or preparation of such acts; or
	(c) he is reckless as to whether his conduct has an effect mentioned in paragraph (a) or (b).
	(2) For the purposes of this section a person engages in conduct falling within this subsection"

Lord Bassam of Brighton: My Lords, the amendment does not just stand in the name of my noble friend Lady Scotland. In a model of co-operation and consensus, the amendments that have been tabled also have the support of the noble Lords, Lord Kingsland and Lord Goodhart, and the noble and learned Lord, Lord Lloyd of Berwick. We are always grateful to these noble Lords for their co-operation and for the spirit in which they have approached scrutiny of this Bill, but I am especially grateful on this occasion. I understand the concerns they originally had about intent and recklessness and how these could be inserted into Clause 2, but I am particularly grateful to them for working closely with my noble friend Lady Scotland and with colleagues in the Bill team to ensure that we could find a test that would prove satisfactory to us all.
	Before turning to the text of the amendments, perhaps I may say something about procedure, a subject I know is always close to your Lordships' hearts. Only last week noble Lords agreed to the recommendations of the Procedure Committee, which touched on, among other things, amendments at Third Reading. What we are doing here today is exactly in line with those recommendations. One of the permitted purposes of Third Reading amendments is simply to tidy up a Bill, and that is what these amendments seek to achieve. They make no change of substance; indeed, if they did, I doubt whether such a star-studded cast of Peers would have put their names to them. Rather, these amendments respect the decision of principle that was taken on Report and ensure that the legislation is both effective and workable.
	For those of your Lordships who may be somewhat bewildered by the amendments before us, and by the differences between them and the text as it stands, I shall explain as briefly as possible why they are required. The text of Clause 2 has two main weaknesses, which these amendments seek to address. First, it does not sufficiently recognise that it is the publication, not the person, that does the encouraging. Secondly, it does not sufficiently cater for those categories of action that do not involve actual dissemination, including, most obviously, possessing terrorist publications with a view to their dissemination. The same problems apply to material of use to terrorists and to recklessness. For those reasons, the text of the Bill is in need of some revision.
	The noble Lord, Lord Kingsland, made use of the concept of the effect of dissemination in his provision on recklessness in Clause 2(1)(b). We have been able to use this concept to ensure that the test we now propose to insert can work. The new test says that the person carrying out the conduct has to intend that an effect of his conduct will be the direct or indirect encouragement to the commission, preparation or instigation of acts of terrorism and that references to "an effect" include an effect of the publication or one or more of the persons to whom it may become available as a consequence of that conduct.
	Amendments Nos. 1 and 2 revise the test in Clause 2 in such a way that the current weaknesses can be overcome. Amendment No. 3 is purely to correct a nonsense that I think we can all accept crept into the text on Report. We in the Government, the noble Lords, Lord Kingsland and Lord Goodhart, and the noble and learned Lord, Lord Lloyd of Berwick, are all satisfied that the test we now propose will work. I urge your Lordships to accept all these amendments. I beg to move.

Lord Goodhart: My Lords, we are genuinely grateful to the Government for their decision, taken some weeks ago, to accept the principle that offences under Clause 2 as well as under Clause 1 should require intent, or at least recklessness. We on these Benches would have preferred recklessness not to be there, but we voted on that on the first day of Report, and lost.
	The version of Clause 2 tabled by the Government on Report was, we thought, unsatisfactory, confusing and extremely difficult for anyone to understand. We therefore put forward our amendment which was not different in principle, but which we thought provided a simpler and clearer definition of the real issue. Subsequently, the Government have produced a very much revised version of their original amendment which has been considered by bodies representing the university librarians and has met with their approval. In those circumstances, we see no useful purpose to be served in seeking to insist on our own amendment. We on these Benches, and no doubt noble Lords on other Benches in your Lordships' House, are content to accept the present version put forward by the Government which, we are glad to say, will bring to an end one contentious issue on the Bill.

Baroness Carnegy of Lour: My Lords, university librarians have written to me, and doubtless to other noble Lords, to say that they are now satisfied with what is proposed. I am not sure whether these are the amendments on which they so decided. However, by their nature librarians are not political; they trust the Government, the Front Benches and the noble and learned Lord on the Cross-Benches to do the right thing for them.
	I still do not understand how the Government could have made such a mistake at the beginning on producing the Bill. It has taken a lot of time and trouble by many people to get it right. However, we shall not worry about that now. I am sure everyone is extremely grateful that the right solution has been found. Time will tell whether the Government have made sure that innocent librarians will not have to appear in court to defend themselves for simply doing their proper job.

Baroness Warwick of Undercliffe: My Lords, I join noble Lords in thanking my noble friend the Minister for the characteristically open way in which she has pursued an understanding of the effect of Clause 2. Libraries and the academic community, including Universities UK—I declare an interest as chief executive—saw potential in the original draft to catch innocent activities. They feared that confusion about what was intended to be an offence under Clause 2 as originally drafted might lead to self-censorship. I am delighted that the Minister has sought to make it clear that only those who intend to provide encouragement or assistance to terrorists will be caught by this offence. Not only has she done this by means of numerous assurances; we now have an amendment which puts the matter beyond doubt.
	I pay tribute to the way in which the noble Lords, Lord Kingsland and Lord Goodhart, have sought to achieve this clarification. The noble Baroness, Lady Williams, has also been unstinting in her support for the libraries and academics, as indeed have many other noble Lords who have spoken eloquently on the subject. I wholeheartedly support the government amendment. It will set many minds at ease outside this House.

Lord Eatwell: My Lords, I declare an interest as chairman of the British Library. I join in the general congratulations to the signatories of the amendment on having achieved the consensus that is represented before us.
	While I welcome the amendment, I ask the Minister for two assurances. First, at Second Reading and other stages of the Bill, I raised the issue of the relationship between the requirements of this Bill and of the British Library Act 1972 and the Legal Deposit Libraries Act 2003 with respect to the corporate person of the British Library and the other copyright libraries. The two issues on which I particularly focused were the requirement under the 1972 Act that the British Library maintain a comprehensive collection—and, therefore, it should indeed collect terrorist materials—and the requirement placed on the legal deposit libraries in general under the 2003 Act to receive copyright material whether in print or electronic. Those two requirements do not now conflict with the Bill, as amended, but I should like the Government's assurance that the Bill does not conflict with the statutory requirements under those two Acts.
	The second assurance that I would be most grateful if the Minister could give me refers to what has now become known as the Hazel Blears letter written in January of this year to many persons interested in this Bill, and quoted on Report by the noble Baroness, Lady Williams of Crosby, in which my right honourable friend Hazel Blears argued that libraries should not allow,
	"impressionable people to see such publications".—[Official Report, 17/1/06; col. 563.]
	The letter was suggesting that libraries would in future have to examine and test everyone who wanted to look at particular materials.
	My noble friend Lady Scotland, in replying to the noble Baroness, Lady Williams, said that my right honourable friend's letter had been written prior to the Government's change of mind with respect to Clause 2 and that if the letter were to be written again, it would be phrased differently. If the Minister can indicate in what way it would be phrased differently, that would be enormously helpful to the libraries community.
	In conclusion, I echo what has been said by my noble friend Lady Warwick. I thank those who have supported the libraries, particularly the British Library and the copyright libraries, in the discussions on the Bill. I pay particular tribute to the indefatigable support of the noble Baroness, Lady Williams of Crosby, for the British Library, for which, I assure her, the library and its staff are enormously grateful.

Baroness Williams of Crosby: My Lords, I, too, thank those who have produced this comprehensive amendment. It is very pleasing that agreement has been reached. The Government, the opposition and my noble friend have contributed substantially to that, as have the chief executive of Universities UK and the chairman of the British Library.
	At this late stage in the game I am reluctant to pick any nits, if one can use that phrase in this noble House, but, like the noble Lord, Lord Eatwell, I have one other question concerning deposit libraries to which I seek a response from the Minister. This time it involves not the noble Baroness, Lady Scotland, but the noble Lord, Lord Bassam of Brighton, who I am pleased to see is responding to the questions being raised. In the debate on Amendment No. 84 on the final day of Report, the noble Lord said:
	"This amendment, prompted by those changes, will give further protection to the interests of libraries, for example. That is because publications could conceivably be seized from libraries because of the actions of particular librarians".—[Official Report, 25/1/06; col. 1254.]
	He added that it was a "matter of interpretation". I should be most grateful if the noble Lord, Lord Bassam, in responding to the questions he has been asked, would comment on what interpretation he was placing on that because he will appreciate that a lot of librarians became worried by the awful prospect of gentlemen and ladies, possibly wearing black balaclavas, coming in and forfeiting large chunks of deposit libraries. Perhaps he could say something to calm those fears.

Lord Stoddart of Swindon: My Lords, I, too, welcome the amendment and compliment those who drafted it. I do not want to be churlish about it but it shows the value of the way this House runs itself. The House was able to take all the time that was necessary to get this part of the Bill right. That is a tribute to the House and to the way it runs its affairs. I hope that will be a lesson to those people who want to alter the way this House runs itself and to impose on our deliberations the sort of restrictions that the House of Commons has seen fit to accept. I think that this could be a salutary lesson to the House not to change its procedures too quickly.
	What worries me is that the Bill came forward in the first place from the Home Office in a form that was completely unacceptable to virtually everybody in this country. There is a lesson there for the Home Office, too. When it is framing legislation that will have a possible effect on individual people of all sorts throughout this country, it should be ultra-careful. Ministers in that department should also be extra careful in agreeing to allow such legislation to come forward.
	This has been a good experience for the House of Lords—for Ministers, for noble Lords on the Front Bench and, indeed, for the whole House—in the way in which it has been able to improve the Bill. I sincerely hope that the Commons will not try to alter the Bill when it goes back, but I feel sure that Ministers will not allow that to happen.

Lord Bassam of Brighton: My Lords, I shall endeavour to ensure that my noble friend Lady Scotland receives the paeans of unadulterated praise that have rained on us this afternoon as a consequence of our bringing forward these amendments. I am genuinely grateful for all the help that we have had.
	It was never the Government's intention to capture the innocent activity of librarians, as I am sure all Members of your Lordships' House would accept. However, we have been pleased to try to make progress in ensuring that the legislation is more accurately and precisely drafted, so that it does not have any unintended consequences. For that reason, if no other, I think that this exercise has been very useful.
	My noble friend Lord Eatwell has understandably asked for further points of clarification. I am more than happy to try to give him further assurance on the effect of Clause 2, as it now stands, on the work of libraries and librarians; I am happy to put our further thoughts on record.
	The Government are clear that the offence in Clause 2—with intent and subjective recklessness—will not have the effects that some of your Lordships had feared. It will not force libraries to stop activities that we would all, I am sure, regard as legitimate and it will not force copyright libraries to desist from activities that they are legally bound to carry out. Nothing in the Bill will prevent the British Library carrying out its statutory functions under the British Library Act 1972, in particular maintaining the comprehensive collection that it is required to maintain by Section 1(1) of that Act. Nor does the Bill contain any provisions that would hinder the operation of the Legal Deposit Libraries Act 2003, including the British Library's automatic receipt of a copy of every work published in print. It is clear that such works must be deposited at the British Library without the library having to request them in advance, although even if the library had to request them in advance, that would not present any difficulties with regard to Clause 2 of the Bill. In addition, Clause 2 does not present any hindrance whatever to the British Library in maintaining a collection of on-line publications that is representative of this medium. It has never been the Government's intention that these possible consequences should ever have happened, nor, I believe, has the offence ever been drafted in such a way that they would have happened. The fact that we have now inserted intent and subjective recklessness should remove any lingering doubts on this issue.
	Having given the House that general assurance, I should like to explain in a little more detail why any specific provision relating to the copyright libraries would be unnecessary. First, the offence in Clause 2 does not place any new obligation on libraries to examine the publications that they obtain or possess. It will therefore not be the case that if a library does not know the contents of a publication it could be prosecuted under this offence. Secondly, it is now necessary for the prosecution to show that anyone charged with this offence committed it through either intent or subjective recklessness. If someone disseminates a terrorist publication with the intention that it should come into the hands of someone who would be encouraged by it to commit terrorist acts, such a person should be guilty of an offence. If someone disseminates a terrorist publication knowing that this will happen, or knowingly takes an unreasonable risk that it would, they too should be prosecuted. These points should be acceptable with regard to libraries and librarians. Obviously if they commit the offence with intent they should be prosecuted, but even with regard to recklessness there is no problem.
	Libraries and librarians are under no obligation to examine publications more than they would otherwise have done. They are not obliged to examine the people to whom they make the publications available more than they would otherwise have done. So I do not see how, in the ordinary course of events, they could be said to be subjectively reckless in disseminating them. Even when they know that a text has the potential to encourage terrorism, for example, if they are alerted to that possibility by its title or reputation, to be subjectively reckless they would still have to know that they were taking an unreasonable risk in lending it to a particular individual. If the librarian did not know that a publication was likely to encourage terrorism, or if they did not know that a person seeking to borrow it was likely to be susceptible to such encouragement, they could never be convicted of the offence because they would not have knowingly taken an unreasonable risk. They could therefore not be subjectively reckless. As we have explained, they are under no extra obligation to examine either publications or borrowers. I hope that those reassurances are sufficient to end any concerns that your Lordships may have had about the possible effects of Clause 2 on libraries.
	Responding to the reflections of the noble Baroness, Lady Williams, at an earlier stage in the Bill, of course the Bill allows for the seizure of terrorist publications, but there is no intention to seize material from deposit libraries or other legitimate libraries. What is more, the amendment made on Report to Schedule 2 ensures that in the highly unlikely event of an inappropriate seizure the material can more easily be returned. I hope that reassures the noble Baroness. I think that we have now come to a reasonable accommodation. I hope that the further assurances that I have given to the noble Lord, Lord Eatwell, more than suffice; and I trust that I have answered the point understandably raised by the noble Baroness, Lady Williams. We do not want to alarm librarians, but we need to have clarity on the way in which the law operates. I am grateful to all noble Lords who have been concerned about this part of the Bill.

On Question, amendment agreed to.

Lord Bassam of Brighton: moved Amendments Nos. 2 and 3:
	Page 3, line 30, at end insert—
	"(4A) In subsection (1) references to the effect of a person's conduct in relation to a terrorist publication include references to an effect of the publication on one or more persons to whom it is or may become available as a consequence of that conduct."
	Page 4, line 6, leave out from "intention" to end of line 7 and insert "specified in subsection (1)(a)"
	On Question, amendments agreed to.
	Clause 3 [Application of ss. 1 and 2 to internet activity etc.]:

Lord Goodhart: moved Amendment No. 4:
	Page 4, line 44, leave out ", in the opinion of the constable giving it,"

Lord Goodhart: My Lords, in moving Amendment No. 4, I shall speak also to Amendments Nos. 5, 6, 7, 8 and 10. This group of amendments applies to Clause 3, which deals with the dissemination of material by Internet service providers. The Internet is now, as all noble Lords will know, an extremely important method of transmitting information and opinions. The transmission by an Internet service provider could include the transmission of a terrorist publication. Internet service providers do not and in practice cannot monitor all the material that they transmit. Clause 3 contains a mechanism for giving notice to an Internet service provider if the authorities discover that the provider is transmitting what is called in the Bill "unlawfully terrorism-related" material. Notice is given by a constable if, in his opinion, the Internet service provider is transmitting such material. "Unlawfully terrorism-related" material is defined in subsection (7); I will return to that definition later.
	The notice to be served under Clause 3 requires the removal of the offending material within two working days. Non-compliance with the notice is not, in itself, an offence, but a non-compliant Internet service provider is treated as endorsing the material and, therefore, exposed to prosecution under Clause 1 or 2. An Internet service provider could, in theory, object to the notice and defend the prosecution on the grounds that the material was not, in fact, unlawful. However, the inevitable result in practice is that the Internet service provider will comply with the notice. That provider has no benefit from fighting the notice. If it does so—or continues to transmit that material and then seeks to defend a prosecution—it faces costs, considerable time and expense from the court, and a possibility of conviction. Against that, it will get no benefit at all in practice from objecting to the notice. The obvious answer for any Internet service provider is simply to accept the notice and remove what is regarded as offensive material.
	On Report, the noble Baroness, Lady Scotland, said that market forces would deal with that problem. Well, they will not; in fact, market forces make it obvious that Internet service providers will not contest any notice that is given to them. It is also extremely unlikely that whoever has authored the material that is being objected to will challenge the notice. They may well not know that it has even been blocked.
	We believe that this gives rise to two big problems concerned with freedom of speech. It is convenient to speak to them together because, while they are quite different in nature, only by doing so does one get the full picture. The first relates to the Internet, which, as I have already said, is an extremely important method of communication. However, many authoritarian governments block unwanted material and take steps to ensure that such blocking is effective. That is notorious in, for example, Saudi Arabia, but particularly in China.
	There has been much recent publicity in China about Google, which is setting up a new search engine for customers there. The Chinese authorities are insisting that it should not carry material which they do not want Google to carry for people there. For example, if in China you search for references to Falun Gong, you would only get extremely critical articles saying that that is a dreadful terrorist organisation. You would not get the other side of the story at all. Therefore, to allow the police to serve Clause 3 notices—in effect, to block transmissions—with no oversight and by any other authority, especially with no judicial control, is not acceptable. It may be acceptable to the Chinese or Russian authorities, but not here.
	We believe that this is a real threat to freedom of speech, and Amendments Nos. 4, 5 and 10 would require judicial authority for the issue of the notice. The procedure that we envisage is something similar to that for the issue of an arrest warrant. No notice will be given to the Internet service provider, and the service of the notice will be delayed by a few hours—24 hours, at most. The judge would, of course, have to satisfy himself or herself that there were indeed grounds for serving the notice. This will have a limited effect for obvious reasons, particularly for time, and we accept that there could be no hearing; but at least this step would prevent obvious abuses and would make the police think twice about whether the notice was really needed before they went to a judge to obtain authority to serve it.
	The second problem, dealt with by Amendments Nos. 6, 7 and 8, is the extreme width of the definition of what is "unlawfully terrorism-related" in subsection (7). I shall read it to noble Lords to demonstrate its breadth. The subsection states:
	"For the purposes of this section a statement or an article or record is unlawfully terrorism-related if it constitutes . . . something that is capable of being understood as a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism or Convention offences".
	I draw the attention of noble Lords to the words, "capable of being understood". All sorts of things are capable of being understood in all sorts of different ways by different people. Material may be capable of being understood in ways that are unexpected by anyone who creates or transmits certain material. Saying that that material is "unlawfully terrorism-related", simply because it may possibly be understood by some unknown person as encouraging terrorism, is way beyond anything that is reasonable.
	Before anything that is being transmitted by an ISP is blocked, the police and the judge should be satisfied that that material is "likely to be" understood as encouraging or assisting terrorism. A Clause 1 offence is committed only if the published statement is "likely to be understood" as encouraging terrorism. That is on the face of the Bill. Similarly, in Clause 2(3) a publication is a terrorist publication only if it "likely to be understood" by persons to whom it is available as encouraging terrorism.
	There is no justification whatever for applying a weaker test in Clause 3 for something that is unlawfully terrorism-related. Otherwise, we will end up in the absurd situation where the police can serve a notice under Clause 3 warning an Internet service provider to remove material from transmission, even though that material is not "likely to be understood" as encouraging terrorism, but merely that it is possible that it might be. It might be material that could legitimately be published or disseminated by its creator under Clauses 1 or 2. That is plainly wrong. The test for the notice under Clause 3 should be the same as the tests under Clauses 1 and 2.
	The combination of those factors—the absence of any oversight of the police's use of their powers under Clause 3 and the unreasonably wide meaning given to "unlawfully terrorism-related"—means that Clause 3 as it stands is likely—I repeat, likely—to be a serious threat to freedom of communication. I have little doubt that those views will be shared by the courts.
	These are important amendments that should be accepted by the Government. I beg to move.

Lord Kingsland: My Lords, in view of the scope and incisiveness of the analysis given by the noble Lord, Lord Goodhart, I can be extremely telegraphic. We share the noble Lord's concern about the threat to freedom of speech posed by the power of constables to issue Clause 3 notices. As the noble Lord rightly said, there is no incentive for an Internet service provider to challenge the notice. The only control contained in the Bill is the words,
	"in the opinion of the constable".
	The noble Lord has explained graphically why that is a wholly inadequate protection of the principle of freedom of speech. He will have our support.

Baroness Williams of Crosby: My Lords, this is not only a major issue, but it will become more and more important as the Internet extends to more countries and more people in those countries. Members of the House may recall that a couple of years ago the BBC attempted to extend its contract in China to enable it to produce new services for the Chinese people.
	The Chinese Government took extreme exception to a harrowing and profoundly disturbing programme, which some noble Lords may have seen, called "The Dying Room", about the deaths of many infant girls in China which were not prevented. In consequence, the Chinese Government made it plain that they were not likely to accept an extension of the BBC's remit. In other words, the principle of censorship was once again made central to the basis upon which a contract might or might not be accepted.
	This kind of behaviour is likely to become a greater threat, not only in this country but elsewhere, as my noble friend has indicated, to the freedom of expression at a time when the world badly needs such freedoms. Indeed, the recent willingness of Google to accept certain limitations on the provision of its services to Chinese citizens is profoundly troubling. Similar attitudes have been taken in the past by governments like those of Malaysia, Russia and others.
	This matter is of much more than technical importance. It is extraordinary that an issue of such significance, where the example given in this country may well have an extensive influence far beyond its borders, should be able to turn on the opinion of a constable, however serious and conscientious a police officer he may be.
	I therefore plead with the Government to consider carefully the position put forward by my noble friend and the noble Lord, Lord Kingsland, because much more than a simple technicality is involved. There is, in this set of minimal and modest-looking amendments, a great deal at stake.

Lord Hylton: My Lords, this group of amendments seems designed to protect not only freedom of expression but also freedom of information. Those freedoms are highly important for the continued existence of democracy and thus, indirectly, for the restraint of terrorism. I am therefore very pleased the support the amendments.

Lord Bassam of Brighton: My Lords, to use a word much favoured by the noble Lord, Lord Kingsland, I shall be telegraphic in putting the Government's argument. I see no point in prolonging a debate which we have had on two, if not three, occasions.
	As ever, we are grateful to the noble Lord, Lord Goodhart, for tabling these amendments because they enable us to get to the point of the issue. We do not have a lot more to add to comments made from these Benches on Report. I will, however, deal with Amendments Nos. 4, 5 and 10, and then Amendments Nos. 6 to 8.
	As the noble Lord, Lord Goodhart, has expertly explained, Amendments Nos. 4, 5 and 10 insert a measure of judicial oversight into the notice provisions on the Internet in Clause 3. I understand that this has been principally argued for by the Opposition because they believe that the effect of a notice, when served on an Internet service provider, will be to force it to comply. The Government believe that this is incorrect, and that judicial oversight is unnecessary. First, we do not think that the effect of the notices will be to oblige Internet service providers to comply in all cases. This is the case not just because of the effect of such compliance on their customers and brand reputation, but also because the principal mischief this clause is aimed at is that of those who run websites—the webmasters—not Internet service providers. We expect very few notices to be served on Internet service providers.
	Secondly—as the noble Lord, Lord Goodhart, conceded on Report—the amendment is not even desired by the UK Internet industry. UK Internet service providers want a process similar to those already in operation for communications data. They want a single point of contact between them and the prosecuting authorities, and clear guidance on what, how and when to deal with notices when received. That is exactly what we aim to deliver.
	Thirdly, the inclusion of "intent and recklessness" in Clauses 1 and 2, while not directly dealing with notices, makes it far more likely that an Internet service provider—or, indeed, a webmaster—will take issue with the serving of a notice, and refuse. More importantly, we are also worried that the insertion of "judicial involvement," proposed by this amendment, will prove unnecessarily burdensome, especially as the amendment requires a senior judicial level of involvement; that is, the involvement of a High Court judge.

Lord Goodhart: My Lords, the appropriate judge is not a High Court judge; it can be a circuit judge or a judge of the High Court under Amendment No. 10. So, it is not restricted to High Court judges.

Lord Bassam of Brighton: My Lords, having looked at the amendment again, I accept that as a point of clarification and interpretation.

Viscount Bledisloe: My Lords, could the noble Lord explain how he reconciles his two statements: the first being that there will be very few notices; the second being that judicial involvement will very burdensome? To my simple mind those two statements seem somewhat difficult to reconcile.

Lord Bassam of Brighton: My Lords, I do not think that they are particularly difficult to reconcile. Clearly, when a notice is served, it will be burdensome to deal with that particular procedure, at that particular time, and in that particular case.
	The other argument I take some exception to is that made by the noble Lord, Lord Goodhart, in comparing what we are doing here with what has been happening in China with Google. I think the analogy with China is quite inappropriate. After all, a notice under this clause does not require anyone to remove or censor material. It simply advises an Internet service provider that it will not be able to rely on the defence of non-endorsement. In that sense I cannot see that it is a direct restriction to freedom of speech in the terms used by the noble Lord to describe, and compare with, what is happening in China with Google. In any event—and I have heard the noble Lord say this—freedom of speech is not exactly an absolute concept with regard to the Internet. For instance, I am sure the noble Lord would accept the point that it is inappropriate and wrong for child pornographers to have access to Internet to publish their appalling material, and that we should seek to limit such access. So, I cannot accept his argument on that.
	Turning to Amendments Nos. 6, 7 and 8, again I do not believe that there is much to add. The test of whether some or all of the persons who come into contact with a statement are likely to understand that statement as encouragement exists in Clauses 1 and 2. Under Clause 3, a constable applies the test of whether a statement is capable of being understood as unlawfully terrorism-related when considering issuing a notice. That difference is the root of the difference in the tests. The constable is asked to make a judgment as to whether a statement is capable of being understood as unlawfully terrorism-related. The noble Lord's amendment would require a constable to second-guess whether the court will take the view that an audience is likely to understand the statement as an encouragement. The Government's view is that this is unnecessary and that the police ought to issue a notice saying that they are concerned about the statement's presence as they would under present drafting.
	I realise that there is a difference of view on this; I suspect that the noble Lord will not favour the Government's response, but we have to reach a conclusion. I hope that the noble Lord will reflect further upon it; I am asking the noble Lord, Lord Goodhart, to withdraw his amendment, but not with great expectation.

Lord Goodhart: My Lords, I shall be very brief. I am very grateful to all those who have spoken in support of these amendments, and particularly to the noble Viscount, Lord Bledisloe, for his very trenchant intervention during the Minister's response. It is of course true that Internet service providers have not been lobbying for this particular group of amendments. That is perfectly understandable. They are commercial organisations concerned with having a procedure which they can understand and comply with. They are not concerned with issues of freedom of speech—indeed, that has been shown by the action of some major Internet service providers in other parts of the world.
	I have not been asking for uncontrolled access to the Internet. I entirely accept the principle behind this—that something on the Internet, transmitted in material from a website, which is truly terrorist-related should be removed. It is simply that the police should not have the authority to enable them to go around removing any material which they have the slightest suspicion might possibly be of some interest to somebody for terrorist purposes.
	I do not think that something "capable of being" understood and something "likely to be" understood are different in nature; they are simply different degrees of probabilities. Something is capable of being understood if it has maybe a one in 10 chance that it will be understood in that particular way. It is only likely to be understood if it has a 51 per cent chance. I think that the arguments for and against have been fully placed. I therefore seek the opinion of the House.

On Question, Whether the said amendment (No. 4) shall be agreed to?
	Their Lordships divided: Contents, 148; Not-Contents, 147.

Resolved in the affirmative, and amendment agreed to accordingly.

Lord Goodhart: moved Amendment No. 5:
	Page 5, line 9, at end insert—
	"(3A) A notice under subsection (3) shall not be given unless it has been approved by an appropriate judge.
	(3B) An appropriate judge shall not grant an application for approval under subsection (3A) unless he is satisfied, on the evidence before him, that the statement or the article or record is one to which subsection (1) applies.
	(3C) The Secretary of State may make regulations relating to applications made under subsection (3A).
	(3D) Regulations made under subsection (3C)—
	(a) may provide for an application to be heard without notice to the relevant person and in his absence;
	(b) shall provide that the relevant person and other persons having an interest in the matter may apply to a court for the revocation of the notice.
	(3E) The first regulations made under subsection (3C) may not be made unless a draft of the statutory instrument containing the regulations has been laid before and approved by a resolution of each House of Parliament.
	(3F) Other regulations made under subsection (3C) shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament."
	On Question, amendment agreed to.

Lord Goodhart: moved Amendment No. 6:
	Page 5, line 36, leave out "capable of being" and insert "likely to be"

Lord Goodhart: My Lords, this amendment has already been spoken to but it is not consequential. I therefore wish to test the opinion of the House.

Lord Boston of Faversham: My Lords, the Question is that this amendment be agreed to. As many as are of that opinion will say, "Content". To the contrary, "Not-Content".

Noble Lords: Content.

Lord Boston of Faversham: My Lords, the Contents have it.

On Question, amendment agreed to.

Lord Goodhart: moved Amendments Nos. 7 to 8:
	Page 5, line 40, leave out "capable of being" and insert "likely to be"
	Page 5, line 42, leave out "capable of being" and insert "likely to be"
	On Question, amendments agreed to.

Lord Goodhart: moved Amendment No. 9:
	Page 5, line 43, at end insert—
	"( ) Nothing in this section shall apply to a transmission which is excluded from a criminal sanction under the Electronic Commerce (EC Directive) Regulations 2002 (S.I. 2002/2013)."

Lord Goodhart: My Lords, I hope that we shall have only a short debate on this point and I do not intend to test the opinion of the House. This amendment has been tabled in order to try to get an assurance from the Government. I understand that the Internet Service Providers Association has been having discussions with the Government. Internet service providers are keen to ensure that the protection given to them under the e-commerce regulations 2002 should not be overridden by the Bill. Those regulations implement a European Community directive that is binding on the United Kingdom. However, the ISPA is still not satisfied with the assurances given on the application of the e-commerce regulations, although its concerns have been met on a number of other issues.
	The protections offered by the directive are essential to ISPs in the United Kingdom. Can the Minister answer questions which, if the answers are right, would have the effect of giving the assurances we seek? First, do the Government accept that exemptions from criminal proceedings under the e-commerce regulations should not be overridden by the Bill? Secondly, it appears not to be clear in the Bill that those exemptions do in fact remain in full force. Do the Government believe that the exemptions are not overridden by the Bill or, if they intend to deal with the problem at all, will they do so in some other way—and if so, how? In particular, are the Government contemplating secondary legislation—and if so, on what basis?
	I should add that the concerns of the ISPA also extend to the possibility of forfeiture of members' servers under Clause 28. If that happened, it would be disastrous for an Internet service provider. My own view is that a court would have no power to do this and therefore I have not tabled an amendment on the point. However, the ISPA would be comforted if the Minister can confirm that this is also the Government's view. I beg to move.

Lord Bassam of Brighton: My Lords, this amendment would ensure that service providers who fall within the definition of "mere conduits" are able to avail themselves of the protections in the Electronic Commerce (EC Directive) Regulations 2002 against criminal liability. "Mere conduits" are, broadly speaking, providers who supply transmission and access services. These are usually Internet service providers who may also perform a number of other functions.
	During discussions between officials, the UK Internet Service Providers Association and LINX, the ambiguity of the relationship between the regulations and the Bill was of clear concern to the industry. The Government have been less concerned, although obviously not complacent, because of the way the offences in Clauses 1 and 2 are structured. The intent and subjective recklessness tests and the defences of non-endorsement in both clauses mean that mere conduits who would be very unlikely to know about the presence of statements equally would be very unlikely to be considered criminally liable under the terms of the Bill. However, to provide additional clarity, during the Report stage, I confirmed to the House that the Government intend to bring forward a statutory instrument which will apply the protection against criminal liability currently enjoyed by mere conduits to the Terrorism Bill, as well as other provisions of the regulations. It is the Government's aim to do so as soon as is practicably possible with the aim that it will be completed within this parliamentary Session. So I can say that all sides of your Lordships' House are committed to achieving the same effect. In essence we are seeking to examine the best means to provide the necessary protections via the statutory instrument which we intend to bring forward.
	I cannot advise the House to accept the amendment as it confers far wider protection than is granted under the terms of the e-commerce regulations. I am sure that the noble Lord will accept that point. It does so by conferring protection on transmissions rather than just the mere conduits protected by the regulations. We believe that the approach I have outlined to solving this little problem is the best way forward, given all the other safeguards that exist, not least the requirement for intent or subjective recklessness. I do not believe that the short gap that may occur between Royal Assent and the making of the statutory instrument will place anyone at undue risk and certainly the industry does not seem concerned about the issue either.
	The noble Lord, Lord Goodhart, sought another assurance about the seizure of articles under Clause 28. I can give the assurance on the ISPA request regarding search and seizure that the powers to search, seize and forfeit cover only articles that can be disseminated under Clause 2. Servers and other IT equipment owned by ISPs do not come under that definition. The noble Lord asked whether the Government accept that exemptions are not overridden—yes we do and, as I explained, we will deal with the matter through secondary legislation.
	I hope that having heard what I said about the amendment and about our intention to bring forward a statutory instrument as soon as we can, the noble Lord will feel happy to withdraw his amendment.

Lord Goodhart: My Lords, as I said at the beginning, I do not wish to test the opinion of the House on this amendment. Discussions between the Government and the ISPA and LINX are not concluded and no doubt there will be further issues. As regards your Lordships' House, for the time being we must leave the matter there. I hope that what the Minister said will prove satisfactory to the organisations concerned. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goodhart: moved Amendment No. 10:
	Page 5, line 48, at end insert—
	"( ) In this section "appropriate judge" means—
	(a) in England and Wales, a circuit judge or a judge of the High Court;
	(b) in Scotland, a sheriff or a judge of the High Court of Judiciary;
	(c) in Northern Ireland, a High Court judge."
	On Question, amendment agreed to.

Lord Goodhart: moved Amendment No. 11:
	After Clause 4, insert the following new clause—
	"DEFENCES
	(1) Subsection (2) applies where in accordance with a provision mentioned in subsection (3), it is a defence for a person charged with an offence to prove a particular matter.
	(2) If the person adduces evidence which is sufficient to raise an issue with respect to the matter, the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.
	(3) The provisions in respect of which subsection (2) applies are sections 1(6)(b), 2(7)(b) and 3(5)."

Lord Goodhart: My Lords, the amendment relates to the standard of proof on matters that have to be proved by the defendant. A defendant is never required to prove anything beyond reasonable doubt, but there are two possible standards that a defendant may be required to meet. The higher of the two is that the defendant must prove his or her case on the balance of probabilities. The lower level is that there is what is known as an evidential burden of proof; that is, if the defendant produces enough evidence to raise an arguable case, the burden shifts back from him or her to the prosecution to disprove that defence beyond reasonable doubt. The lower standard—simply having to show an arguable case—has been applied in a number of terrorist defences; for example, the evidential burden of proof applies to seven different sections of the Terrorism Act 2000 by virtue of Section 118 of that Act.
	Requiring a defendant to prove particular facts as part of his or her defence, of course, conflicts with the general presumption of innocence and must, therefore, be used only with great care and when really necessary. I accept that in some circumstances where the facts are in the particular knowledge of the defendant, requiring the defendant to give evidence of those facts may be justified. But a reverse burden of proof should not be used beyond that.
	This amendment applies to three provisions. The first two apply respectively to Clauses 1(6)(b) and 2(7)(b), which are similar. They both provide that it is a defence for the defendant on a charge of publishing or disseminating terrorist statements to show that what was published or disseminated did not represent the defendant's own views and, furthermore, clearly did not represent those views. It can be argued that the first issue—that the statement did not represent the views of the defendant—is wholly within the knowledge of the defendant and, therefore, requiring him or her to prove that on the balance of probabilities is acceptable. But the second issue—was it made clear in the context that they did not represent the defendant's views—is different.
	Let us look, for example, at a magazine which publishes an article which is sympathetic to the terrorist acts of Hamas. The magazine contains an article also which puts the contrary view. The magazine is prosecuted and the prosecution says that it has been acting recklessly. The publishers of the magazine satisfy the court that they do not agree with the article which is sympathetic to Hamas and that that article does not therefore represent their view. But the question arises: have they made that clear? That seems to be to a large extent an objective test. It depends not on the views of the defendants but on the likely reaction of readers, which is not within the specific knowledge of the defendants. I believe that it should be beyond doubt that once the defendants have shown what steps they took to make clear their disagreement with the views expressed in the article, it is for the prosecution to show that those steps were insufficient.
	The third clause to which this amendment applies is Clause 3(5). This arises out of the problem of repeat statements; that is, where a blocked statement reappears in the same form through the same Internet service provider, which is very difficult to prevent. It is a defence under the Bill to show that the Internet service provider has taken every step it reasonably could to prevent a repeat statement being transmitted. It is reasonable to require an Internet service provider to give evidence about what steps it took. But the question of whether it should have taken further steps is technical, because it is a matter of having to tell the court what other steps might have been available to be taken, and objective, because it is a test of reasonableness. The burden of showing that the ISP could reasonably have taken further steps must once again be on the prosecution.
	I accept, reluctantly, that it is legitimate to require the defendants to explain their views, or what steps they have taken to publicise those views or to prevent repeat statements being published. But it is wrong to require a defendant to prove matters which may not be within his own knowledge and may be objective in their application. The amendment aims to prevent what I believe would be an injustice and is inconsistent with the rules of our criminal process and the need to prove the guilt of the defendant. Any reverse burden of proof should be limited only to those elements of the offence which are primarily within the knowledge of the defendant and should not go beyond that, as the Bill now does. I beg to move.

Lord Goldsmith: My Lords, I rise with a little trepidation as I have not taken part in this debate before. The House may know that I am deputising here for my noble friend Lady Scotland.
	As the noble Lord, Lord Goodhart, has made clear, this amendment relates to the defences in Clauses 1 and 2 of the Bill, including as they are applied by Clause 3. The House has debated Clauses 1 to 3 at length, and plainly I do not want to go back over that ground. It is right, however, to remind the House that this is an area where the extensive amendments which have been brought forward into Clauses 1 and 2 have done two things. First, they make it clear that the Government have been prepared to listen to the concerns expressed in Committee and to refine Clauses 1 and 2 to take account of those. I refer particularly to the acceptance that the test of recklessness should be subjective rather than objective. Secondly, flowing from that, the result is the heavy burden on the prosecution in each of these offences. It was always a heavy burden, but it is heavier still. In particular, when one looks at the offences of recklessness, the prosecution will now have to prove beyond reasonable doubt the criminal standard; not simply that it would be reasonable to be concerned about the risk, but that there were those aspects of the defendant's own state of mind sufficient to justify subjective recklessness. It is important because one does not get into the defences under Clauses 1 and 2 until and unless the prosecution has proved that.
	I know that at an earlier stage the noble Lord, Lord Goodhart, indicated that the switch of evidential or legal burden was a poor substitute for changing the intent that was necessary, and that the House has not gone quite as far as he wanted on that occasion. It is right to say that although this is not limited only to intent, it is subjective recklessness which is the only addition to it.
	I also recognise that in these amendments the noble Lord accepts, in relation to Clauses 1 and 2 but not Clause 3, that the elements in the defence should be treated differently. He accepts that, he said, reluctantly. I am not sure why he said that, but never mind; he accepts that a defendant should have to show whether he himself endorsed these views. He accepts that in relation to Clauses 1 and 2, and therefore the defendant will continue to bear the legal burden in respect of that element. His concern in relation to Clauses 1 and 2 is showing whether it was clear in all the circumstances that the statement or publication did not express the defendant's view or have his endorsement. Under the amendment, the defendant would bear the evidential burden only in respect of this element; one needs to be quite clear what that means in practice. Having the evidential burden means no more than raising the issue, whereupon it is for the prosecution to prove—it may well do so before the defendant ever reaches the witness stand—that the defence is not made out.
	In previous debates, the question of whether a burden should fall on the defendant has been discussed. It is not a straightforward matter. The House is also well aware that ultimately it may be for a court to determine whether it is appropriate to have placed a legal burden on the defendant in the particular circumstances. What is being provided by the Government in these clauses does not prevent the court from taking that view. The Government's view would be that it is perfectly right, appropriate, proper and compatible to place the burden in these circumstances on the defendant; but it would be ultimately for a court to say so. The noble Lord's final remark was that this is contrary to principles and present law. If that were so to the extent that it made the trial unfair, that is a matter the court could deal with.
	I then look to why, in the Government's view, it is fair and reasonable to place the legal burden on the defendants in these cases. I start with Clause 3(5). I was a little unclear about what the noble Lord said. I may have misheard him but I understood him to accept that it was reasonable that the defendant should have to prove what steps he had taken. But the amendment would take that burden away from the defendant because it applies to the whole of the defence in Clause 3(5), not just a part of it.

Lord Goodhart: My Lords, I am grateful to the noble and learned Lord for giving way. My understanding was that if the evidential burden of proof is introduced, the defendant could not just say nothing. The defendant would have to give evidence about what steps he had taken. Once he had done that, unless they were plainly inadequate, it would be for the prosecution to say, "No, the steps you took do not amount to reasonable steps". I do not think that there is an inconsistency.

Lord Goldsmith: My Lords, I cannot agree with that. On the example given, I am not sure that it would be necessary for the defendant to give evidence. However, for the purpose of argument, let us assume that. But what about the next limb of Clause 3(5) which, again, by the amendment, the noble Lord takes out of a legal burden on the defendant: that part of the defence is showing that he was a person to whom subsection (6) applied? Subsection (6) includes the fact that he is not aware of the publication of the repeat statement. The effect of the amendment would be—I am happy for him to intervene and explain otherwise but it seems clear—that the legal burden would be on the prosecution to prove that the defendant was someone who was aware of the publication of the repeat statement. There can be nothing more within the knowledge of the defendant than his own state of mind. We are at Third Reading; there is no coming back on the amendment. If the amendment were passed, there would be a real problem with the Act as then passed.
	On Clauses 1(6)(b) and 2(7)(b), I accept that the noble Lord has been more precise in the parts that he has taken out. But let us examine the purpose of the defence. The defence would arise in circumstances where somebody published—and the prosecution would have to prove it—a statement which was, to put it crudely, a direct or indirect inducement to terrorism, as so understood by reasonable people. So the person has published the statement. He also has sufficient knowledge of the risk that the statement will induce terrorism, but is subjectively reckless about taking it. I do not want to try to define precisely what "subjective recklessness" means; it has been discussed before. The person publishes the statement and has sufficient knowledge that it may be an inducement to terrorism, but is prepared to take that risk.
	I can imagine circumstances in which somebody—perhaps a broadcaster—is prepared to do that. That person says, "I realise that if I publish this on the television, or wherever, it may have the effect of inducing people to commit terrorism, but I think it is justifiable to take that risk because it is in the public interest". In those circumstances is it unreasonable to say to that person, "It is a defence for you to do that provided you do not endorse that view, and it is clear that you do not endorse that view"? Is it really unreasonable in those circumstances to say that that person needs not only to have the burden of taking that risk but of proving that that was the circumstance? I respectfully suggest that, given that we are providing this exception to meet that category of offence, it is not at all unreasonable to say, "You may take that risk but you must prove that you did not endorse the view expressed, and it was clear that you did not endorse it". That will very clearly put on to the person who chooses to take that risk the burden of making it clear that they did not endorse the view expressed, which would be an easy enough thing for them to do.
	I respectfully suggest that the amendment would plainly require the prosecution to do something that would not be within its knowledge, at least in relation to the point that I made on Clause 3(5). It would also be unreasonable not to say to someone who is publishing this material with subjective recklessness, "You must take the risk and you must prove it". We must consider what lies behind this. I think that the House is agreed on the fundamental principle—we must stop people publishing statements which may encourage other people to commit acts of terrorism. I invite the noble Lord not to press the amendment.

Lord Goodhart: My Lords, I am grateful to the noble and learned Lord for his very full, clear and thorough explanation of his views. However, I remain largely unpersuaded by them. There is a strong case for applying the evidential burden rather than the higher burden in some cases, as was done in the Terrorism Act. However, we have made the case for the measure. I recognise that there are arguments on both sides. Therefore, I do not intend to divide the House and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 8 [Attendance at a place used for terrorist training]:

Lord Goodhart: moved Amendment No. 12:
	Page 9, line 28, at end insert—
	"( ) In proceedings against a person for an offence under this section it is a defence for him to show that he had at no time while attending at that place intended to further any of the purposes specified in subsection (1)(c) or to assist other persons to further such purposes."

Lord Goodhart: My Lords, Amendment No. 12 raises a freedom of speech issue. It seeks to amend Clause 8. Under Clause 8, attendance at a terrorist training camp is an offence whatever the defendant's motive for being there. Furthermore, it is an offence which carries a maximum sentence of 10 years, so it is very serious. The offence applies to attendance at a camp anywhere in the world and whether or not the terrorism involved is directed against targets in the United Kingdom. There could be a number of reasons for attendance at a terrorist training camp without having any intention to further terrorism, but I want to concentrate on one which I think is the most important of these—the effect that it will have on journalism.
	It is surely a matter of public interest and, indeed, of very great importance to understand terrorism in all its different aspects. That has become increasingly clear in recent years since we have been threatened by and, indeed, have suffered terrorism in our own country, as we have done for many years. It is important to understand the objectives of the terrorists and how they plan to attain those objectives. Clause 8, as it now stands, would seriously hinder this. It would prevent a journalist from going to the camp under cover in order to report to the world what is going on. Furthermore, and perhaps even more important, it would prevent a journalist from openly—and with the knowledge and consent of those who are running it—visiting a training camp in, let us say, Chechnya or Sri Lanka, where the terrorism is not directed against the United Kingdom.
	Clause 8 would, I believe, seriously undermine investigative journalism. That is also the view of John Simpson, one of our most important, experienced and respected reporters. In a long article in the Sunday Telegraph on 15 January, he said:
	"Everyone who saw Peter Taylor's meticulous series on al-Qaeda recently on BBC television will remember how valuable it was in explaining the thinking behind the violent threat to our society and values. It was an important piece of work, thoroughly in the public interest. Yet already, according to Taylor's executive producer, Fiona Stourton, Clause 8 of the Terrorism Bill is making the investigation of their next series on al-Qaeda extremely difficult".
	This is, of course, hearsay, but it is hearsay that comes from somebody who is in a far better position than I am—and probably than any other Member of your Lordships' House is—to form a judgment on these issues.
	Furthermore, I believe that Clause 8 is plainly incompatible with Article 10 of the European Convention on Human Rights. To be compatible, the absolute restriction in Clause 8 would have to come within one of the permitted restrictions under Article 10.2. Is Clause 8, as it stands,
	"necessary in a democratic society, in the interests of national security"?
	In its full strength, it is plainly not. Is it necessary in the interests of,
	"territorial integrity or public safety"?
	Again, I believe not.
	On Report, the noble Baroness, Lady Scotland, said that the proper thing for any journalist to do when they ascertain that a place that they are visiting is a terrorist training camp,
	"is to leave and to notify the . . . authorities".—[Official Report, 17/1/06; col. 650.]
	That would presumably be, for example, an obligation to go straight to notify the authorities in Russia—an obligation that is hardly likely to get the journalist into the camp or, if they get in, to get them out of it. It seems to me that this shows a total lack of understanding of the role and ethics of journalism.
	We have gone some way towards meeting the Government's objections. The burden will be on the defendant to prove a defence on the balance of probabilities; the burden will not be merely evidential, as we proposed in our earlier amendments on the subject. However, the provision is plainly, I believe, a serious danger to freedom of speech. Moreover, it is a danger whose removal would, I think, offer no threat at all to the security of this country. It is important to allow people to make a case to explain why they were at the terrorist camp and to show that they were there for purposes that are in no way connected with the furtherance of terrorism. This is something on which I would certainly wish to insist; I hope that your Lordships' House will have the same view. I beg to move.

Baroness Kennedy of The Shaws: My Lords, I support the amendment for all the reasons that have been outlined by the noble Lord, Lord Goodhart, and for another reason. It is important for the House to know that these camps are not like Sandhurst; they are often very informal and they are often in rural villages in places such as northern Pakistan or in tribal areas. They often operate on an ad hoc basis, put together because it is known that a number of people will be willing to attend at a particular time. People often travel there under cover of tourism or say that they are going to visit family members. Sometimes they travel with their womenfolk—wives or sisters—to provide that cover. Therefore, a woman may be there not because of any willingness to be associated with terrorism, but she would find it very difficult to assert her opposition because of the nature of the relationships and the power disparities that there are within many of those family situations, with which I am familiar. Therefore, I am anxious that there is an opportunity for women who are placed in those situations to be able to afford themselves of a proper defence.

Lord Bassam of Brighton: My Lords, I shall keep my comments brief, as we have rehearsed this territory on at least two occasions. I express my gratitude to the noble Lord, Lord Goodhart, for at least providing us with the opportunity to come to a view as a House. Nothing in this clause, or the Bill as a whole, will in any way hinder the work of legitimate investigative journalism or legitimate academic pursuits. I repeat the point that was made very capably on Report by my noble friend Lady Scotland; a journalist who has suspicions that terrorist training is taking place can take steps to establish whether there is any foundation to their suspicions. However, at the point when those suspicions have been confirmed, the correct course of action is for that journalist to leave and alert the appropriate authorities. That is as true for journalists as anyone else.
	On Report, many noble Lords pointed out that journalists or academics may want to interview guerrilla leaders for the purposes of furthering knowledge and understanding of the purpose and methods of their movements. That is an understandable, laudable and highly desirable activity. I am sure that many of us have benefited from reading important contributions towards that understanding. I can think of one or two books that I am sure have been gleaned as a result of interviews with those who are very close to or who are involved in guerrilla activity. However, as was explained in correspondence to the noble Baroness, Lady Williams, on 24 January, there is no reason why those interviews cannot take place, provided that they do not happen in a place where terrorist training is being provided.

Lord Goodhart: My Lords, I am grateful to the noble Lord for giving way. Is he really suggesting that it is perfectly legitimate for a serious journalist to have an interview with a terrorist leader 10 yards outside the gates of the camp, but once he goes through those gates he is committing an offence that is punishable by 10 years' imprisonment?

Lord Bassam of Brighton: My Lords, clearly a practical view will be taken of the circumstances in which interviews are given.
	As we have indicated before, we consider that this amendment would allow a significant loophole. It is not difficult to imagine that our courts may be faced with a steady stream of people claiming that they were simply observing but not participating, and that is not acceptable. The Government's position is clear; no one has any legitimate reason to be in a place where they know that terrorists are being trained. It is as simple as that. We simply should not allow a get-out clause. I am confident that terrorists would not be slow to exploit one.
	In the light of what has been said and, in particular, the reassurances that we have given and sought to offer in respect of journalists—whose work must clearly be encouraged and fostered—I had hoped that the noble Lord, Lord Goodhart, would withdraw his amendment. Having heard what he said earlier, it seems extremely unlikely that he will. We simply have to draw a line here and express our clear difference of view on how this part of the legislation—

Baroness Kennedy of The Shaws: My Lords, before the Minister sits down, I took his slight barb that there had been no reception of any notice from me that I would raise the issue of women. I should have thought that the Government, being so mindful of women's issues, would have had that before them in any event. The reason I raise it today, not having raised it before, is that it has only just been drawn to my attention how people going to such camps frequently use women as cover. It is important that the Government have a view on whether such a woman would have a proper defence.

Lord Bassam of Brighton: My Lords, I suspect that the noble Baroness's understanding of what she described as informal camps is accurate. She clearly is knowledgeable on the subject and knows much more about it than I. No doubt such a defence could be offered in those circumstances, but that does not deter me from the view that we have expressed before on this amendment and how it has been argued by the noble Lord, Lord Goodhart. We clearly have a difference of view, and no doubt the noble Lord will seek to ensure that that difference of view is expressed by your Lordships' House.

Baroness Kennedy of The Shaws: My Lords, I am sorry to interrupt again, but unless there is a possibility of a defence for such a woman, then she will be convicted for being there in attendance with her husband. The expectation seems to be that she should leave and notify the authorities. That is unrealistic, given our understanding of the situation that often prevails in relationships in Pakistani families. It is important for the Government to address that, so that we do not find women in an impossible situation before the courts were they to be present, but unwillingly, in such a camp.

Lord Bassam of Brighton: My Lords, the noble Baroness is clearly entitled to her view and interpretation of how the legislation will work. We happen to disagree with that.

Lord Goodhart: My Lords, it seems that the Government's position combines the risk of serious damage to journalism with the absence of any benefit whatever to our national security. I want to read another passage from what John Simpson wrote. He said:
	"There have been unreflective, knee-jerk laws in this area in the past: the ban on broadcasting the sound of Gerry Adams's voice, for instance. It will be much harder to defend society better against terrorism if we prevent journalists from finding out the precise nature of the threat against us. Does the Government really mean to do this amount of damage to the meticulous, independent journalistic investigation of terrorism? Surely not".
	Unfortunately, the Government have shown that their answer is "Surely yes". In those circumstances, I must take the opinion of the House.

On Question, Whether the said amendment (No. 12) shall be agreed to?
	Their Lordships divided: Contents, 79; Not-Contents, 145.

Resolved in the negative, and amendment disagreed to accordingly.
	Clause 21 [Grounds of proscription]:

Lord Lyell: My Lords, Amendment No. 13 stands in the name of the noble Lord, Lord Thomas of Gresford. I should advise the House that there is a mistake in the amendment. It should read:
	"(a) after 'terrorism' in subsection (4), insert 'advertently or by design';
	(b)"

Lord Thomas of Gresford: moved Amendment No. 13:
	Page 18, line 33, at end insert—
	"(a) after "terrorism" in subsection (4), insert "inadvertently or by design";
	(b)"

Lord Thomas of Gresford: My Lords, the Government have very properly accepted that intent and recklessness should be an element in the offence under Clause 1 where a person publishes a statement to which the clause applies.
	There is a loophole, because the Government could say, "We cannot prove intent or recklessness in this particular case. We will get the Secretary of State to proscribe the organisation to which this individual belongs. If the Secretary of State does that, and no question of intent or recklessness comes into it, then we can do him simply for being a member of that organisation". He will face exactly the same penalty—up to 10 years' imprisonment—for being a member of an organisation or, if he wears a T-shirt or carries a banner, up to two years' imprisonment. This is therefore a small amendment to Section 3(4) of the Terrorism Act 2000, which sets out the mechanism by which the Secretary of State adds an organisation to Schedule 2—proscribes it—with the effects to which I have alluded.
	All that "advertently or by design" adds is that the Secretary of State, in exercising his power to proscribe an organisation, must believe, first, that it is concerned in terrorism; and, secondly, that it is deliberately concerned in terrorism, not by accident. It may well be that if a person inadvertently published something that would answer the definition of "indirect encouragement"—
	"the making of a statement describing terrorism in such a way that the listener would infer that he should emulate it"—
	the Secretary of State could exercise his powers under Section 3(3).
	These are two simple words, which are simply trying to introduce into the concept of proscription an intent on the part of the organisation to support terrorism. I beg to move.

Baroness Williams of Crosby: My Lords, on some occasions there is nothing so powerful as an example. This is a good occasion briefly to bring such an example to the attention of the House.
	In the course of the passing of the Terrorism Act 2000, provision was made for setting out a list of proscribed organisations, and then to add to it or—in certain circumstances, rarely met—to take a proscribed organisation off the list. In March 2001, an organisation rather amazingly known as Hamas-Izz al Din al-Quassem Brigades was added to that list; we know it as Hamas. It came in two forms. One was a military and terrorist organisation, which will be familiar to those who follow the affairs of the Middle East. The other was a charitable organisation which, among other things, provided welfare, hospitals and medical attention to the people of Palestine. Both those parts of the organisation are on the proscribed list.
	My noble friend Lord Thomas of Gresford has pointed out that if somebody wildly enthusiastic about the electoral success of Hamas in the past few days were to appear outside the Houses of Parliament wearing a T-shirt saying "Victory to Hamas", she would be liable to a two-year sentence. If she appeared and shouted the words "Victory to Hamas" within one kilometre of the Houses of Parliament, she would have committed an offence which could, in turn, lead to considerable imprisonment.
	I mention that because we are all aware in this House that we are literally on the edge of an extremely difficult political decision on what one does about a terrorist organisation that decides to cease to be—which Hamas has not yet done but may do at any moment—a terrorist organisation and which abjures violence for the pursuit of electoral victory. We are familiar with this because of the endless drawn-out process under which the IRA has slowly moved from being a terrorist organisation to being part of the political process—and it has been something of a nightmare to decide at what point that organisation changed from one to the other. It is not, however, any longer an academic matter, apart from Northern Ireland. It is an all too present matter and one which means that it would be difficult under this law and its associated laws for British citizens to talk to representatives of Hamas and to do so without any risk of being possibly regarded as supportive of a terrorist organisation.
	I believe that my noble friend's amendment helps to some extent. It does not of course cross the huge question of how we legislate for that change to be made. If we are bent on the concept that we want to see democracy extended to more and more parts of the world, that will involve necessarily more and more so-called terrorist or, if you like, freedom-fighter organisations having to choose to become constitutional and democratic. So far none of our legislation gives us any indication of how that can be done. My purpose in rising to support my noble friend is to hope that the House will support his amendment, modest through it is, and to give the Government an opportunity, if the Minister wishes to take it, to say how they intend to tackle this extraordinarily difficult problem.

Baroness Kennedy of The Shaws: My Lords, I support the amendment. In doing so, I mention the organisation Hizb ut-Tahrir. Hizb ut-Tahrir is an Islamist organisation that has views with which many will disagree, but which clearly enunciate its opposition to violence. I was recently involved in a case in which a number of eminent public figures gave evidence about the nature of Hizb ut-Tahrir—and from which I learnt a great deal.
	One concern I know that the Government have is the belief that there are oganisations which, although they themselves may not be espousers of terrorism, may because of their strong views act, even unintentionally, as a conveyor belt towards terrorism. That view should be approached with great caution. Many senior police officers and human rights organisations involved in these issues are very anxious that we do not alienate large numbers of people by creating or outlawing organisations whose views we may not espouse but which are not supporters of violence and which in many ways denounce the use of violence. In those circumstances, I am most anxious that we incorporate the idea of intent into this part of the Bill.

Lord Hylton: My Lords, the noble Baroness, Lady Williams of Crosby, has mentioned Hamas in supporting the amendment. I should like to refer to the PKK in Turkey and to the MEK or People's Mujaheddin of Iran as regards Iran. The latter organisation benefits from massive support in both Houses of Parliament, which may surprise some, but it is perfectly true. There arises in this connection the question of ceasefires and when organisations have or have not come forward with a genuine ceasefire and with a genuine intent to negotiate with governments and others. So I am very much in favour of the two words which this amendment inserts into the Bill.

Lord Bassam of Brighton: My Lords, in essence, I guess that the noble Lord, Lord Thomas of Gresford, wants to know whether an intent requirement is contained within the new grounds of proscription set out in Clause 21. Intent is a matter that can be proved only in a criminal trial, so it is not an appropriate concept to import into proscription. Nevertheless, there are important safeguards that will ensure that proscription does not happen in inappropriate cases.
	It may be worth reminding your Lordships of how the proscription regime operates. If the Secretary of State believes that an organisation has been concerned in terrorism, he may by order add it to the list of proscribed organisations. However, the order must be approved by both Houses of Parliament, subject to the affirmative resolution procedure. Parliament has the absolute right to reject such an order if it disagrees with the Secretary of State's decision that an organisation has been concerned in terrorism and warrants proscription.
	In reaching its decision on the provision on grounds of proscription in Clause 21, Parliament can have regard to any statements issued by or on behalf of the organisation and the context and manner in which they were made. In that respect, amendments passed in your Lordships' House at Report stage may not be as helpful as the previous version of Clause 21, which included a description of "unlawful glorification". However, the Government are carefully considering our response to the amendments and may address them in another place.
	I am conscious that generally, in regard to proscription, Parliament is required to some extent to take advice from the Government on trust. It has been the Government's practice to make available a sanitised version of the intelligence cases against groups that are candidates for proscription but, for obvious reasons, the detail of the intelligence must remain confidential. That is unlikely to be the case for organisations being proscribed on the basis of their indirect encouragement of terrorism. The reason for their prospective proscription will be their public statements, so Parliament will be able to assess the case against the organisations in question and determine whether the Secretary of State was right to say that they are suitable candidates for proscription. Among the factors that can be to taken into account is the nature of the statements in question.
	The Secretary of State, and Parliament in deciding whether to uphold his decision, will be able to consider whether the statements were such as to lead a listener to infer that he should emulate it. Parliament will also be able to consider whether the statement in question was a one-off mistake that did not usually and actually associate the organisation with the indirect encouragement of terrorism, or was symptomatic of the behaviour of the organisation. In forming that decision, the only issue at stake is the behaviour of the organisation. That is what both Houses of Parliament consider when deciding whether an organisation has been correctly proscribed. The process by which they reach their decisions will only be confused if it is suggested that they should stray outside those parameters.
	Once an organisation has been placed on the list of proscribed organisations, it, or someone affected by its proscription, can appeal to the Secretary of State against proscription. If he does not accept the appeal, the matter can be appealed to the Proscribed Organisations Appeal Commission, an independent judicial tribunal. If the Proscribed Organisations Appeal Commission dismisses the appeal, it is still possible for further appeals to go to the Court of Appeal or its equivalents in Scotland and Northern Ireland.
	Those arrangements are appropriate and would not be improved by the amendment. It does not add clarity to the way the Secretary of State makes his decision; nor, for that matter, does it change how both Houses of Parliament will consider the case for proscription and either accept or reject it. In any case, it is inappropriate to seek to impose a statutory intent test in a matter that is not the subject of a criminal trial. The existing safeguards governing proscription are substantial and, we argue, have worked well.
	The noble Baroness, Lady Williams, made some interesting comments and reflections on the proscription of Hamas, but it is worth reminding the House that it is only the military wing of Hamas that is currently proscribed. The political wing of that body is not proscribed, so it would not be affected in the way in which the noble Baroness suggests.
	My noble friend Lady Kennedy of The Shaws made comments about Hizb ut-Tahrir. Again, that organisation is not currently proscribed. The list of proscribed organisations is kept under review. If the Secretary of State decides that Hizb ut-Tahrir meets either the current criteria for proscription or those in the Bill, the matter will, as I have said, need to be endorsed by Parliament. The same point arises in response to the noble Lord, Lord Hylton. I do not intend to comment in detail on individual cases, as that would be inappropriate while discussing legislation which, after all, provides the framework for those later considerations. The amendment is unnecessary, and would add nothing to the process of proscription. It would, if anything, confuse that process, which, as I believe most noble Lords accept, has worked very adequately until now. For those reasons, I hope that the noble Lord will withdraw the amendment.

Lord Thomas of Gresford: My Lords, I am most grateful to the Minister for his response. I have not used the word "intent" in my amendments for the very reason that he stated; intent is a matter for proof in the criminal court. Instead, I have sought to circumscribe to a very small degree the discretion which the Secretary of State has in deciding whether to proscribe an organisation. However, I have listened with care to the safeguards to which the Minister referred, and note particularly that there is parliamentary scrutiny of the Secretary of State's decision and that affirmative orders are required before proscription can be affirmed.
	Mindful of the fact that the clause is to be considered later in another place, I am prepared to withdraw the amendment, and express my great thanks to those who have spoken in favour of it in this short debate. I beg leave to withdraw the amendment.
	Amendment, by leave, withdrawn.

Lord Thomas of Gresford: moved Amendment No. 14:
	After Clause 29, insert the following new clause—
	"COUNTER-TERRORIST POWERS
	(1) Part V of the Terrorism Act 2000 (c. 11) (counter-terrorist powers) is amended as follows.
	(2) In section 44 (authorisations)—
	(a) in subsection (3), for the words after "if" to the end, substitute "the person giving it reasonably considers it to be necessary for the prevention of acts of terrorism";
	(b) after subsection (3) insert—
	"(3A) The area or place specified in the authorisation may not be greater in extent than is necessary for the purposes of the authorisation."
	(3) In section 46(3) (duration of authorisation), after "practicable" insert "and in any event within 24 hours".
	(4) After section 46 insert—
	"46A PUBLICITY
	The Secretary of State shall publicise without delay and in such manner as he considers appropriate, the confirmation, cancellation or renewal of an authorisation under sections 44 and 46.""

Lord Thomas of Gresford: My Lords, your Lordships will recall that more than 20 years ago, the Police and Criminal Evidence Act 1984 abolished the infamous sus laws, which had enabled policemen to stop and search and to arrest individuals on the street without any cause. As a result of that Act, an officer was required to have reasonable grounds for suspecting that when he stopped and searched someone, he would find a weapon or stolen articles or tools for the purpose of committing offences. That is the basic law, to which Section 44 of the Terrorism Act 2000 is a very considerable exception.
	When the noble Baroness, Lady Scotland, replied to a similar amendment moved by the noble Baroness, Lady Kennedy of The Shaws, she said:
	"We think that Section 44 is merited and that it does exactly what it was intended to do inasmuch as stop and search under Section 44 of the Terrorism Act 2000 is an important tool in the ongoing fight against terrorism".—[Official Report, 20/12/05; col. 1635.]
	Having listened to that point, I checked what was said when the Bill that ended in the Terrorism Act 2000 was introduced. In the House of Commons on 14 December 1999, Mr Straw said:
	"The main purpose of the Bill is not to extend the criminal code, but to give the police special powers to enable them to prevent and investigate that special category of crime. Those powers include an enhanced power to arrest and detain suspects, and powers to set up cordons, to stop and search vehicles and pedestrians, to investigate terrorist finances and to examine people passing through ports.
	"The police have no interest in using those powers in circumstances in which the normal criminal law will suffice, nor do they have the resources to do so. In 1998, only 45 people were detained in connection with terrorism, and extensions of detention were granted for just 21 of them".—[Official Report, Commons, 14/12/99; col. 162.]
	Considering those words given by way of introduction to Section 44 of the 2000 Act, it is fair to say that the Home Secretary had in mind a limited power to be exercised in limited circumstances. Indeed, save in one or two respects, the power was limited.
	Authorisation under Section 44 for a uniformed constable to stop a vehicle or a person in a place specified in the authorisation was limited, for example, to a certain period of time. It was to be exercised only for the purpose of searching for articles of a kind which could be used in connection with terrorism, and could be exercised whether or not the constable had grounds for suspecting the presence of articles of that kind, but only for a period of 28 days beginning on the day on which the authorisation was given. The authorisation could be given only if the person giving it considered it expedient for the prevention of acts of terrorism. Those were the limitations of the 2000 Act and it is interesting to note how the legislation has been applied.
	When the Act came into force in 2001, not 45 people were arrested under the powers, but 10,200; by 2003–04 that number had risen to 33,800, and the most recent report from the Home Office records 35,776 searches of vehicles and people, of whom only 455 were arrested—not for terrorism offences but for matters discovered on their arrest under Section 44.
	On the type of people who have been arrested, a detailed breakdown of those stopped in 2003–04 under this Act showed that more than one in five was black or Asian, and of course that was before the events of last July, since which time there has been a huge increase in the number of black and Asian people who have been stopped. Noble Lords may recall that while saying that they were not stereotyping, the British Transport Police issued a directive to their officers saying that they should target a part of the population.
	Another group which has been targeted is demonstrators, the most famous of whom is Mr Walter Wolfgang, who was arrested under Section 44 powers at a Labour Party conference. A Mr John Catt, an 81 year-old anti-war campaigner was stopped while making his way through Brighton to an anti-war demonstration wearing an anti-Blair T-shirt. So the initial purposes announced by the Home Secretary back in 1999 for the way the powers under Section 44 were to be used have been ignored. The result is a grave danger that sections of the population will feel as targeted under this provision as those who were targeted under the sus laws, abolished some 22 years ago.
	So it is in that context that I put before noble Lords this modest amendment. It would substitute the words,
	"the person . . . considers it expedient for the prevention of acts of terrorism",
	with the words,
	"'the person . . . reasonably considers it to be necessary for the prevention of acts of terrorism'".
	The amendment also attempts to limit the area in which the provision can be applied. Since 2001, the whole of the Metropolitan Police area has been designated within which the powers of the section can operate. Noble Lords will recall that initially the power was to be given for 28 days in very specific circumstances directly related to terrorism. Now the whole of the Metropolitan Police area is designated on a rolling basis. At the end of a 28-day period, the person who authorised the previous 28-day period signs a piece of paper, takes it to the Home Office where it is rubber-stamped, and the period is renewed for a further 28 days. That has been repeated over a period of five years. No thought is given to individual circumstances.
	For example, one can understand that if a political party conference is being held in Brighton and there are security problems, an authorisation under Section 44 is justified. But to designate the whole of the Metropolitan Police area on a rolling basis year after year was not the original intention of the Act. So the third amendment to the section I want to introduce provides that:
	"The area or place specified in the authorisation may not be greater in extent than is necessary for the purposes of the authorisation".
	It should relate to the area where terrorist activity is thought to be likely to take place. I shall turn to the question of publicity in a moment.
	The Act requires the person authorising the powers under Section 44 to inform the Home Secretary "as soon as practicable", to which I seek to add the words,
	"and in any event within 24 hours",
	and finally, to introduce some transparency. The noble Baroness, Lady Scotland, suggested that we do not tell anyone which areas are subject to an authorisation under the Act, because all the terrorists will go to some other area and therefore that would be wrong. That is not a sensible way of proceeding: if a particular part of London, or of England and Wales is thought to require this special protection, the public should know about it and it should not be a matter of operational secrecy simply rolling over the authorisation, as has happened over a wide area. That is the reason for the final part of the amendment on publicity: that,
	"The Secretary of State shall publicise without delay and in such manner as he considers appropriate, the confirmation, cancellation or renewal of an authorisation".
	Obviously we on these Benches are anxious—as are noble Lords in every part of the House—to have effective tools to combat the curse of terrorism in our society, but we believe that those tools need to be focused, specific and not in themselves to cause a problem in the community by bringing about a sense of grievance among tens of thousands of people who are being stopped and searched for no proper reason. I beg to move.

Lord Thomas of Swynnerton: My Lords, I speak as the father of someone who was once stopped in such circumstances. He looks a responsible person; indeed, once when he was at university he was in this House and asked by the then-Conservative Whip to delay his departure from the House on the grounds that the Whip supposed he was a hereditary Peer, so I assume that he looks respectable in normal circumstances. He was stopped in Walton Street on his way to a luncheon appointment. All his possessions were put on the pavement. He was detained for about 40 minutes and was therefore late for lunch. To be late for lunch is not a very serious matter, but there is no question that if the police did not cause a sense of grievance they caused a sense of distress and anger in the person concerned—perhaps anger is too strong, but in all events there was a sense that inconvenience had been unnecessarily caused. I shared that naturally, because I always side with what my family does or does not do. I have heard my son pouring ridicule on the police in consequence of that action, which seemed an excessive intrusion on his privacy.

Lord Harris of Haringey: My Lords, I agree with the views that have been expressed about the abuse of the former sus laws and that it would be extremely undesirable if Section 44 of the Terrorism Act 2000 was abused, misused or used in a totally inappropriate circumstances. I cannot comment on the account given by the noble Lord, Lord Thomas of Swynnerton, of what happened to his son. It may not have been a reasonable use of powers under Section 44.
	However, we have to examine what the powers are there for. I have not had the opportunity of looking in detail at the comments that the noble Lord, Lord Thomas of Gresford, quoted from my right honourable friend Jack Straw. In that context I do not know whether he was introducing just this section or a wider part of the Bill, but my understanding of Section 44 has been that it is used under a range of different circumstances. It may be used in relation to a particular location, where there is a specific concern.
	I would like to pose a question to your Lordships' House. If, for example, there was intelligence suggesting that a particular site was in danger and by taking action in response the source of that intelligence would be compromised, I think that publicity would not be helpful and that highlighting a particular location and therefore potentially the source of the intelligence would be a mistake. Similarly, if a counter-terrorist operation was under way in a particular area—for example, a surveillance operation involving a number of properties—it might be a proper use of Section 44 for the police to be stopping either at random or virtually everyone in the surrounding area. However, because it was a continuing operation, it would not be in the interests of that operation to publicise the fact that the operation was in process.
	There needs to be very careful thought on this amendment. In the context that we are talking about, I certainly do not see that publicity will ever be helpful. It is also important that there is the opportunity—I know that the police authority of which I am a member takes this very seriously—to monitor closely the use of these powers, the way in which it happens, the circumstances and the statistics that are available. But there should also be the opportunity to get underneath that in order to know what guidance is being given to individual police officers on how they should use Section 44 powers when an authorisation is in force and to understand what happens when a police officer uses the power.
	One very clear message relating to the problems arising from stop and search in other contexts is that the way in which the stop takes place causes the most offence—whether people are treated individually with respect or whether they are given any reason. I do not know the precise details of the example given by the noble Lord. But a lot of hurt, irritation and subsequent anger is mitigated if individuals are treated with respect and an explanation is given which at least they can understand. They would be able to say, "Yes, clearly, I am not who you are looking for" or "I am not the sort of person you are looking for". It should be done in a way where that explanation is given.
	While I understand the nervousness about the Section 44 powers, we need to be very cautious about the amendment. It will impede counter-terrorist activity in a number of circumstances. It would be dangerous to pursue the lines that have been set out. I hope that after the Minister's reply the noble Lord will withdraw the amendment.
	Finally, the noble Lord, Lord Thomas of Gresford, made much of the growth in the stop and search figures. But Section 44 of the Terrorism Act was part of the Terrorism Act which was passed in 2000. It was prior to the events of September 11 in New York and Washington and, of course, long prior to the events of last July. I do not find it surprising that the number of stops that have taken place under the terms of the Terrorism Act have increased sharply since the initial period after the introduction of the Act.

Lord Hylton: My Lords, I think that the noble Lord has been a member, and perhaps still is a member, of police authorities. What is his view on the application of this power to the whole of the metropolitan area for a considerable period of years?

Lord Harris of Haringey: My Lords, I have discussed this in some detail. If you go through London borough by London borough to identify potential targets, your Lordships may be surprised to know that there is no London borough which does not have significant potential targets in its area—whether they are installations of military significance or of major importance to the infrastructure or to the functioning of the state, or whatever else. Every part of London could potentially be a target. If you add to that the present objective of the terrorism that we are having to deal with—to inflict mass casualties—you start to think about places of entertainment, major shopping centres, football stadia and so on. It becomes very difficult to say that there is no part of London which is immune.
	Whether the approach of saying, "Let us designate the entire metropolitan police district rather than being a bit more selective" is right or whether it is right that this should happen on a regular basis, it is not appropriate to comment. But I come to where I started when I intervened initially. Clearly, the police in using the powers under Section 44 must be very mindful of the danger of misuse and must avoid a situation in which we have recreated the sus laws, which many of us were involved in arguing against at the time. That is why I come back to the way in which the Act is used—the way in which guidance is given to individual police officers about the circumstances in which they should do this, the way in which the stops take place, and the nature of the interaction between the police stopping an individual or a car and what is said to the individual concerned.

Lord Lloyd of Berwick: My Lords, I apologise to the noble Lord, Lord Thomas, for having missed the first minute or two of what he said in moving this amendment. The powers under Section 44 are of great utility. Everyone agrees with that. Like many others, I am concerned that they are being used to an extent which is far in excess of whatever anyone originally imagined and, in some cases, are clearly being abused. The amendment is carefully drawn to limit the opportunities for abuse and to confine the powers to within the limits which were originally intended. I lend strong support to the amendment.

Baroness Kennedy of The Shaws: My Lords, I, too, support the amendment. I want to elucidate some of the confusions existing around this amendment. I had originally placed an amendment before the House, which I accept was probably much too complicated. I am grateful to my noble friend on the Liberal Democrat Benches for making a better go at this than I did. The reason why I support the amendment—and the reason why I think there is some confusion—is that when Section 44 was brought into the terrorism legislation in 2000, there was agreement that there could be circumstances in which stop and search should not require a reasonable suspicion and that the circumstances would be of such an extreme kind that one would want to move away from the police being expected to have a reasonable suspicion, which is what we require ordinarily.
	We were saying that there could be circumstances where, for example, the whole of Whitehall—because of information or because an event was taking place, such as a visiting dignitary—has to be subject to greater scrutiny and security and everyone, or every fifth person, has to be searched. One did not want to have the possibility of an individual police officer looking around and saying, "I'm going to search that chap there", because of the risk of discrimination in that. It may be that when my noble friend on the Cross Benches described the stopping of his son, it was because a police officer on a whim decided that here was a toff who looked like a Lord and that he would interfere with his going on his way. I do not know what the motivation was. But as regards the suggestion that politeness or giving a good reason would meet the problem, this is precisely where a policeman does not have to give a reason. The point of Section 44 is that no reason has to be given.
	It gives an incredibly new power to a police officer. For that reason, it should be used only in very special circumstances and in ways which are not discriminatory. This amendment attempts to put those limits back. There is clear evidence that police officers use it to select people without knowing full well that they will not be required to give a reason. That is the difficulty which we have to countenance.

Lord Harris of Haringey: My Lords, I understand the point that my noble friend makes. There is a distinction between not having to have reasonable grounds of suspicion of an offence or whatever and making the stop; but there is then a distinction concerning what you say to the individual. In circumstances where you stop the person and say, "We are stopping you because we are stopping one in five of the people going down this road"—I doubt whether that was the circumstance to which the noble Lord referred—people can understand that.
	Similarly, in wider cases of stop and search, if you say, "We are stopping people with yellow anoraks with hoods over their heads, because someone has just been seen doing something, and you happen to have a yellow anorak with a hood over your head", that again people can understand. They may still resent it, but it removes some of that sense of hurt. I am not trying to suggest that simply being polite and providing that sort of background reason is a sufficient guardian against abuse of the power. I am saying it is an important component, and one which police authorities will take extremely seriously.

Baroness Kennedy of The Shaws: My Lords, to respond to the points made by my noble friend, the example he gave of the person in the yellow coat answering a description is precisely the circumstance in which you do not use Section 44.

Lord Harris of Haringey: Yes, I was not suggesting it should be.

Baroness Kennedy of The Shaws: My Lords, the point of Section 44 is that you do not have to have an explanation. The difficulty, about which many organisations complain, is that police officers are not understanding the provision. Indeed, the Metropolitan Police Authority raised this as a source of anxiety, saying that it was interfering with trust in the police and they were worried about the consequences. Their powers are not sufficiently explained to them, and are using the provision in ways which are indiscriminate. As a result they are discriminating, using their powers most particularly against people deemed to be politically active, or who are brown-skinned and who look as though they may be Arab or of Islamic persuasion, or for whatever other reason they think might be involved in terrorism simply on appearance. That inevitably leads to real alienation within certain communities. That is what we have to guard against and the amendment attempts to return limitations to this power, to ensure that it is used only in the proper way.

Lord Harris of Haringey: My Lords, before my noble friend sits down, the amendment falls into two parts. One is—

Baroness Kennedy of The Shaws: My Lords, I think I had finished.

Lord Harris of Haringey: Then before my noble Friend completely sits down, my Lords, the first three parts of the amendment are precisely that in terms of setting definitions about the way Section 44 might be used. They clearly tighten the definition, and that may meet some of what the noble Lord and my noble friend are trying to achieve. But the fourth point, about publicity, seems to be a separate issue and I am not sure that it is helpful to the objectives the noble Baroness is trying to encourage us to meet.

Baroness Farrington of Ribbleton: My Lords, I remind my noble friend that this is Third Reading. Important points of elucidation are allowed if the noble Baroness gives way, but we may not go back to having a thorough debate at Third Reading.

Lord Kingsland: My Lords, the noble Baroness is correct about the state we have reached in the Bill. However, it was such an attractive and free-flowing exchange that I am sure your Lordships, in those circumstances, will be entirely forgiving.
	The noble Baroness, Lady Kennedy of The Shaws, was extremely modest in the way that she said to the noble Lord, Lord Thomas of Gresford, how much he had improved the amendment. He has, indeed, improved the amendment; but we owe the noble Baroness a great debt for introducing it in the first place.
	I entirely agree with the noble and learned Lord, Lord Lloyd of Berwick, that Section 44 plays a vital role in combating terrorism. Your Lordships should not be in any doubt about that. Yet it is important that it combats terrorism in a way that does not adversely affect the community from which so many of those who are stopped and searched come. Without the confidence of that community, we are never going to get to grips with the terrorist threat.
	What the noble Lord, Lord Thomas, has achieved in this amendment is getting the right balance in both the circumstances of stop and search, and defining the relevant geographical area. One can argue about the exact nature of the text, but we have here, in my view, the best of all possible worlds. I for one, on behalf of the Opposition, intend to support it if the noble Lord presses it to a vote.

Lord Bassam of Brighton: My Lords, I agree with the noble Lord, Lord Kingsland, that although strictly speaking we were not working within the confines of debate at Third Reading, it was a useful exchange and there was value added through the points made. Although we may ultimately disagree, and it seems as though we will have a Division on this, there is a spirit in your Lordships' House which recognises that there is a real and genuine problem, that there is merit in the current way in which the powers work, and an understanding at least of the import of those powers in combating terrorism. There is a shared objective to do exactly that.
	We have debated these issues at some length, and it is not my intention to go over so much of the ground. It is plain that we in the Government do not agree with the amendment and that we are satisfied with existing arrangements, but it is worth reminding your Lordships' House of some key points which I think are highly pertinent.
	As the noble and learned Lord, Lord Lloyd of Berwick, recognised, stop and search under Section 44 of the Terrorism Act 2000 is an important tool in the ongoing fight against terrorism. It is part of a structured anti-terrorist strategy. The powers help to deter terrorist activity by creating a more difficult environment for would-be terrorists to operate in. An authorisation under Section 44 of the Terrorism Act gives the power to stop and search pedestrians, vehicles, drivers and passengers, in the area specified in the authorisation. An authorisation can only be given if it is expedient for the prevention of acts of terrorism. I do not agree with the point that was made about them being merely rubber stamped. They have to be made by an officer of ACPO rank and must be confirmed by the Secretary of State within 48 hours in order to remain valid after that period. The powers can be authorised in particular locations and for a particular period of time. The noble Lord, Lord Harris of Haringey, made some extremely important points why that might be, in particular with regard to London.
	The noble Lord's proposal would amend the grounds for authorisation of the powers from "expedient" to,
	"necessary for the prevention of acts of terrorism".
	The terrorist threat is, as we all recognise, evolving. It has changed much since the passing of the Terrorism Act 2000. The terrorist threat is now much higher and has changed in its nature, from hostile reconnaissance through to the planning and commission of actual attacks. Applying grounds of necessary for the prevention of acts of terrorism would demand, I argue, an untenable threshold to be reached, and would require a level of intelligence about the specific movements of terrorists that would greatly reduce the police's capacity to deter and disrupt terrorist activity proactively. Intelligence rarely allows such a defined threat to be identified, and the police must be allowed to make informed and evidenced assessments of where the powers are best utilised, based on the information available.
	The noble Lord, Lord Thomas of Gresford, made much of the increase—as he put it—of stops and searches since previous legislation. Our point is simply this: Section 44 of the Terrorism Act is the equivalent of previous powers contained in the Prevention of Terrorism (Temporary Provisions) Act 1989, something of which the noble Lord, Lord Kingsland, will no doubt be familiar. Numbers of people stopped and searched under those powers were at a similar level in the late 1990s to the latest published figures under Section 44. It is important to differentiate between arrest and stop-and-search powers. Arrests are not necessarily a measure of the effectiveness of these powers, but they do help to deter, disrupt and detect terrorist activities.
	It may help the House if I provide some further statistical information in terms of the section and the way it is operated. In 2003–04, of the vehicle occupants stopped and searched under Section 44(1), 70 per cent of those searched were white, 10 per cent were black, and 12 per cent were Asian. Of the pedestrians stopped under Section 44(2), 72 per cent of those searched were white, 14 per cent Asian and 7 per cent black. Overall, searches of white people increased from 14,429 to 20,632—up 43 per cent. Searches of black people increased from 1,745 to 2,701—admittedly up 55 per cent. Searches of Asian people increased from 2,989 to 3,661—up 22 per cent. Of the total number of stops and searches, 78 per cent took place in the Metropolitan police district and the City of London Police area. It is worth noting that the ethnic breakdown of the populations of those areas is significantly more diverse than the overall figure for England and Wales as a whole.
	The figures for the 2003–04 period show that the number of stops and searches has risen across all ethnic groups, but the proportion of Asians stopped and searched has fallen slightly. The noble Lord, Lord Thomas of Gresford, made particular reference to the arrest of Mr Walter Wolfgang. It is the case that the police can use Section 44 in support of a structured counter-terrorist operation. Every senior member of the Government was present at the Labour Party conference, so it is not unnatural that the local police put in place appropriate security arrangements, and rightly so. It has been averred that this is an important factor and feature of conference activity now, and sadly that will probably remain the case for some time. We have always maintained that law enforcement agencies must have appropriate powers, which must be used properly, fairly and consistently. With regard to Mr Walter Wolfgang, my understanding is that the Sussex police rightly apologised to him, and acknowledge that the mention of powers under Section 44 of the Terrorism Act was a genuine mistake in this instance.
	The contributions about the rubbing points, if you like, with regard to the use of the powers were important. We must ensure that these powers are used in a way that does not alienate part of our population and make them hostile to the overall effect of the terrorism legislation. Without that policing by consent in this field, the operation of counter-terrorist activities will be made all the more difficult. I entirely agree with that spirit. I do not think that, in the round, powers used under this part of the Terrorism Act do that. The police are extremely conscious of the need to take people with them. My noble friend Lord Harris of Haringey made those points very well, with his experience as chair of the country's largest police authority and his long involvement with policing in London.
	The final point I ought to respond to is that made by the noble Lord, Lord Thomas, about the intent of the Act. It envisages that the whole of a force area can be authorised, and it was clearly the intention of Parliament that this option was available to police, in circumstances where it is warranted and justified. The noble Lord, Lord Harris, gave a good explanation of why that might be the case in London. The public would not greatly thank us if the police were not able to exercise their powers in that way, if it was felt there was a major terrorist threat. I argue that these powers will be used proportionately; the powers that have preceded them have been used proportionately, and the British public deserve the protection they afford. We cannot accept these amendments.

Lord Thomas of Gresford: My Lords, I am most grateful to the Minister for his reply, and to all those who have spoken in this debate. The contribution of the noble Lord, Lord Thomas of Swynnerton, was a wonderful illustration of precisely where Section 44 is not being used properly. I remind your Lordships of something I said at the beginning; that under Section 45 of the Act the power conferred by an authorisation may be exercised only for the purpose of searching for articles of a kind that could be used in connection with terrorism. I fail to understand how, in the circumstances described by the noble Lord, Lord Thomas, the police officer could have thought he was likely to find any articles concerned with terrorism. That is an unpublicised situation. When we deal with the position of Mr Wolfgang or anyone else who is simply a protester, the matter becomes even more absurd.
	The purpose of this amendment is not to alter Section 44 in any drastic way. Indeed, I am sure the noble Lord, Lord Harris, would happily accept subsections (1), (2) and (3); it is only the question of publicity that he objects to, and I will deal with that in a moment. The amendment would bring the section back to the purposes for which it was originally designed, as stated by the then Home Secretary, Mr Straw, when he introduced the Bill in 1999.
	I said that I would say a word about publicity. It is a fundamental principle that when we are abroad, in England and Wales, we know the law that affects us. We are entitled as citizens to know whether there are any specific provisions that give the police powers in the area where we are. It is incumbent upon the Secretary of State to declare the area to which the special powers apply. No one could be more concerned about the protection of the public than I am, but I do not believe it is helpful, or that it was the intent of this Act when it was passed, for whole areas—and there may be whole cities outside London; we do not know, because they are not declared—to be subject to these special powers permanently, rolling on, 28 days after 28 days, without any obvious consideration being given on a monthly basis to whether they are necessary.
	The word I take from the speech of the noble Baroness, Lady Kennedy, whose amendment was the precursor to what I am saying—I am merely a follower in her footsteps—is "alienation", to which the Minister also referred. It is a balance. Everything we have dealt with in the Terrorism Act ultimately turns out to be a balance between the liberty of the people of this country and the need to protect them. I think the Act as originally drafted, in its original intention, struck a reasonable balance, but it has been misused in the way that I have indicated. Therefore, I seek to test the opinion of the House.

On Question, Whether the said amendment (No. 14) shall be agreed to?
	Their Lordships divided: Contents, 109; Not-Contents, 124.

Resolved in the negative, and amendment disagreed to accordingly.

Lord Bassam of Brighton: My Lords, it gives me great pleasure to move that this Bill do now pass.
	Moved, That the Bill do now pass.—(Lord Bassam of Brighton.)
	On Question, Bill passed, and returned to the Commons with amendments.

Natural Environment and Rural Communities Bill

Lord Bach: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved accordingly, and, on Question, Motion agreed to.
	House in Committee accordingly.
	[The CHAIRMAN OF COMMITTEES in the Chair.]
	Clause 2 [General purpose]:

Baroness Byford: moved Amendment No. 122:
	Page 2, line 15, at end insert—
	"( ) In the event of a conflict arising between any of the aims included in the general purpose, Natural England shall give priority to the aim in subsection (2)(a) and (b) over any other paragraph in subsection (2)."

Baroness Byford: In my humble opinion this is one of the most important amendments that we have tabled to the Bill as it deals with the whole question of the conflict that could arise when Natural England makes decisions. Although the list of aims under the clause is not ranked, as was explained in earlier sittings, we feel that the wording,
	"promoting nature conservation and protecting biodiversity",
	is considerably weightier and more pointed than,
	"contributing in other ways to".
	With no clarity over what the ultimate duty of Natural England might be in a situation of conflict, the pressure exerted by third parties and their supporters—especially if the commercial opportunity is great—could be considerable. Natural England needs to be given teeth and direction to help it meet the challenges that it will face as a major environmental body—something to which the Minister referred at an earlier stage.
	We think that it is correct to give greater weight to the first aim. The purpose of this amendment is simply to ensure that no one can be in the slightest doubt about what the pecking order is. For example, a proposal to site an information centre and café on the limestone pavement of Whernside would, I hope, be stillborn. However, an application to build it near the summit of Helvellyn might be accepted more readily although it would still pose a threat to the environment. I bring to the Committee's attention the conflict surrounding the proposals to build Horkesley Park—supposedly an interactive John Constable experience—in the Stour Valley. That proposal is likely to attract some 760,000 people to this part of an area of outstanding natural beauty, which has the highest level of landscape protection available. But at the same time the proposal could be seen as offering open air recreation. The developers could claim that Natural England's list of inclusive statutory purposes would not allow it to advise against policies or proposals which might seriously damage the natural environment if the contribution to other aspects of sustainable development were great. Potentially there is a major conflict but, as the Bill stands, Natural England will have no teeth to address it. Not only will it not have the teeth to resist outside pressure, its direction could be compromised by unresolvable disagreement between board members. What is more, if major decisions are inconsistent, or seriously damaging to the environment, Natural England's reputation and credibility with stakeholders and the public could be seriously damaged.
	The amendment is not intended to prioritise natural environment objectives over and above any others and in all circumstances; it would be an emergency brake mechanism that could be used in cases of irreconcilable conflict. I must emphasise that it would not form part of Natural England's motivation but would ensure that it could be a trenchant champion of the natural environment. If the situations I have described do not persuade the Committee, I turn to the Environment, Food and Rural Affairs Committee report, which recommended that provision be made in the Bill to address,
	"those exceptional circumstances where there is an irreconcilable conflict, to make clear that the aim of conserving and enhancing the natural environment takes precedence over other purposes. We therefore recommend, for the avoidance of doubt, Clause 2(2)(b) be amended to include reference to the 'protection' of the English landscape".
	The Government's response, quoted in the Select Committee's report, misses the point. The Government state that,
	"it would be inappropriate to automatically give primacy to biodiversity and landscape over access and recreation in rural and urban environments in general".
	The document continues:
	"There is no call for 'automatic' primacy for biodiversity and landscape in terms of funding or policy priority. What is required, and this view is widely shared, is a need for a clear priority for biodiversity or landscape where conflicts arise with some forms of recreation which are damaging to biodiversity or landscape and people's enjoyment of these things".
	So it is not just we on these Benches who are claiming that.
	I refer the Committee to the announcement only this week of the swingeing cut of £1 million that casts a shadow over Wordsworth country, and to the statement that the Lake District faces the biggest ever reduction in services; park authorities warn Ministers over the cash crisis. If Natural England will not fight its corner on behalf of some of those areas, we are not doing the right thing in setting it up in the way that the Bill proposes.
	In Standing Committee A, the Minister, Jim Knight, said that applying the Sandford principle to regional development agencies would be difficult, and that the Government want the RDAs to take the lead in the economy but with due regard to sustainable development. That adds more weight the other way. If the RDAs' real purpose is to take the lead regarding sustainable development—which I believe it is—surely that is all the more reason why Natural England should act as a counterbalance to that.
	On Second Reading the noble Lord, Lord Bach, said in winding up the debate that he wanted:
	"Natural England to be a trenchant champion of the environment. I hope that noble Lords will find it reassuring that the Sandford principle will continue to apply in national parks and that in nature reserves and sites of special scientific interest the strong presumption that biodiversity considerations take precedence will continue".—[Official Report, 7/11/05; col. 472.]
	That is fine as far as it goes but what happens to the areas outside that? I mentioned places where people wanted to set up new recreation areas that will bring a lot more people to areas which perhaps cannot cope with that.
	This is a very important amendment. The Minister in another place was not persuaded by it but I hope that even if the noble Lord, Lord Bach, cannot support me today, he will at least take the measure away and think about it, as Natural England is being put in a position where it will have to take some very difficult decisions. As I said, the regional development agencies have a different primacy. Therefore, it is even more important that Natural England should take the Sandford principle on board. I beg to move.

Lord Carter: I did not intend to speak to this amendment but I believe that the noble Baroness, Lady Byford, said that it was not intended to give automatic primacy to the environment. The brief from the Campaign to Protect Rural England states:
	"The proposal for a conflict resolution mechanism does not mean that natural environment objectives should take automatic precedence . . . The supporters of a conflict resolution mechanism have no intention to change the purpose of Natural England as the Government has described it".
	Then I read the amendment and I wonder whether it is correctly drafted to meet the objectives that the noble Baroness mentioned, as it states clearly:
	"In the event of a conflict arising between any of the aims included in the general purpose, Natural England shall give priority to the aim in subsection (2)(a) and (b) over any other paragraph in subsection (2)".
	As the CPRE tells us, that primacy is not intended, so I wonder whether the drafting of the amendment would achieve what the noble Baroness requires.

Lord Tyler: I listened with great interest to the noble Baroness, Lady Byford. I have great sympathy with the intentions behind the amendment and I think that, if I may say so, the noble Lord, Lord Carter, was—unusually—playing with semantics rather than listening carefully to the purpose of the amendment. As a chair of a national park committee—

Lord Carter: The semantics here are the words that actually appear in the Bill.

Lord Tyler: I take the noble Lord's point, but there is an important principle at stake, which I think that he, with his reputation of defending the interests of the countryside, will take seriously.
	As I was about to say, I was brought up on the Sandford principle. I recall that, when it was introduced, I was a county councillor and a vice-chairman of a national park committee. I have long been a proponent of the principle, because it seems to me critical in rural areas that there is somebody to stand up for this particular interest. If Natural England is not going to have that responsibility, no organisation—no other government adviser or government agency—will have it. As has been explained, most of the other partners and participants in the discussion about what should happen in rural areas have other responsibilities and priorities. If Natural England does not have this as a mainstream responsibility, no one will.
	Of course there is specific legislation that deals with national parks, AONBs and SSSIs, but the countryside generally will not have a champion unless Natural England performs that task. In that context, surely we should take very seriously the advice of the Select Committee on the Environment, Food and Rural Affairs in the other place, which I remind the Minister has a government majority on it. The committee was very specific on this issue and I think that we should listen carefully to it.
	I understand the anxieties expressed by the noble Lord, Lord Carter, about the precise wording, but I believe that, if we are not clear about the purpose of Natural England, that organisation will start its life with one hand tied behind its back and the countryside will suffer as a result.

Lord Judd: I support the intervention made by my noble friend Lord Carter. I have a great deal of sympathy with the intention behind the amendment and with the way in which the noble Baroness, Lady Byford, moved it. However, I think that its wording requires more attention.
	It seems to me—I made this point the other day—that we want to promote nature conservation, to protect biodiversity and to conserve and enhance the landscape not as ends in themselves, but so that we can enrich the lives of an increasing number and an increasingly wide cross-section of people in our society. To introduce, through the way in which the amendment is worded, the concept that access to the countryside is not also of over-riding importance is unfortunate. If one were to begin to break down the wording in the Bill as it stands, one might make more progress. For example, it is arguable that,
	"promoting access to the countryside",
	should not be lumped together in the same paragraph as "encouraging open-air recreation"—perhaps they are not quite the same point. If one were arguing that,
	"promoting access to the countryside and open spaces",
	was also still of paramount importance to Natural England, that would carry more weight. However, I am worried that, as the amendment is drafted, this business of encouraging and enabling people to enjoy what is there and to be enriched by it could be put at a disadvantage. Therefore, I urge those behind the amendment to go away and think again and perhaps to come back with more appropriate wording.
	The noble Baroness referred to the Lake District National Park and the consequences of financial arrangements for the future. As president of the Friends of the Lake District, I am obviously as concerned about the matter as anybody; I am perturbed by what could follow from this financial decision. However, I believe that it is incumbent on all of us who carry direct or indirect responsibility for these affairs to make sure that our arrangements are in such good order that the best possible use can be made of the money that is made available. I also note that any reduction in forward funding is in the context of considerably increased funding over recent years. We have to keep these issues in perspective.
	I draw the attention of the noble Baroness to the very example that she quoted as an indication of the consequences for people who are trying to encourage access and enjoyment. That is what the national park authority is about. What is worrying are the consequences for its ability to fulfil that purpose if any financial cuts are to be made. Therefore, I suggest that she did not present a very good argument to back up the otherwise commendable objective that I think is at the centre of her preoccupation. I believe that—and I am sorry to put it like this—the amendment has not been well drafted. I suggest that, if the principle is to be furthered, those behind the amendment might go away and think again about what they are trying to say.

The Lord Bishop of Peterborough: I very much support the principle behind the amendment. I was not intending to speak, but I have been provoked to do so by the noble Lord, Lord Judd, who is sitting behind me.
	I am a bit disturbed by the doctrine that we should preserve the countryside merely so that we, as human beings, can enjoy it. We need to be concerned about conserving and preserving our landscapes for their own sake. To take it to the ultimate limit, there would be no countryside to enjoy if we had not preserved it. I think that the substance of the amendment is right: where there is a conflict of interest between access to the countryside and preservation of the countryside, preservation of the countryside must come first. Therefore, in principle, I support the amendment.

The Earl of Erroll: I think that the amendment is essential. A good civil servant is good at weighing up all the alternatives and both sides of an argument equally; he is not there to take political decisions. It is therefore essential that the Civil Service and the people who implement the Bill have a clear guide to the political objectives and to the political contrasts that may arise. It is for Parliament, not a civil servant, to decide what should happen where there is a conflict.
	It is important that, in looking at the amendment, we recognise that "priority" does not mean "paramount", as some people seem to be reading it. The amendment sets an order of importance among the various paragraphs. It does not say that paragraphs (a) and (b) will always rule and are completely paramount; it just says that, when you are weighing things in the balance—or when two alternatives seem to be hanging in the balance—there will be a priority and an order of precedence. That is very sensible.
	Outside the SSSIs, where sensitive plants and birds may have protection, we may have ground-nesting birds, such as English partridges or skylarks; we may also have rare plants and all sorts of things that happen to be not particularly common in various areas. Pressure from public access could damage those irretrievably and some of them could be lost. We have to be careful that we are not going to condemn more species to extinction by not setting a priority order among these things. I entirely agree with the right reverend Prelate when he says that we are conserving the environment for its own sake, not just for future generations.

Lord Renton of Mount Harry: I declare an interest as chairman of the South Downs Joint Committee, which is a getting-together of the Sussex Downs area of outstanding natural beauty and the East Hampshire area of outstanding natural beauty in a committee that is formed by the local authorities together with the Countryside Agency. I have listened with great care to what the noble Baroness said in moving the amendment, and I appreciate the difficulty of having priorities among the objectives of Natural England. However, it is worth considering that it is not about the access priority, which others have spoken to, but about the last priority:
	"Contributing in other ways to social and economic well-being through the management of the natural environment".
	It is significant that later in the Bill, in Clause 58, the restraint on spending money on economic and social well-being is removed. It always was that it should be done,
	"without incurring significant expenditure in doing so".
	The fact that this is being removed must be given some significance. In my judgment, therefore, there is every reason why the board and management of this new and very important body will be conscious that their predecessors were restrained financially on how much they could commit to social and economic well-being, and that that restraint has now been lifted—and why? I am of the opinion that to keep the balance and the essential importance of the first two priorities, it is only reasonable to give every favourable consideration to the amendment.

Baroness Miller of Chilthorne Domer: I am grateful to the noble Baroness for tabling the amendment and enabling the debate, because this is perhaps one of the most difficult issues in the Bill. It is certainly the down side of having an integrated agency, because when it was simply English Nature it was much easier to see exactly where the clear duty would lie. However, it is not the only agency to face the issue; I declare an interest as vice-president of the Council for National Parks.
	There are many occasions when a conflict can arise. I am sure that the Minister will be aware of the very difficult decision that was taken in Wales by the Pembrokeshire National Park over the Bluestone development, which caused enormous rifts in all sorts of ways within the national park community, within the local authority and within the wider community that had interests in the countryside. There were many arguments on both sides about the detrimental effect on the landscape, the right of people to enjoy some sort of access at affordable prices to that area and the enormous economic benefits that the local authority felt that it might bring to the area. It was a difficult decision, and following the arguments through their various stages is a good example of where some things are extremely difficult to resolve. At the end of the day, the resolution probably needs to take place in a democratic forum rather than in the forum of an agency.
	However, Natural England will have to resolve some difficult issues. I acknowledge that the Select Committee in another place was clear in its endorsement of the Sandford principle. I was interested in the fact that when he was replying on that, the Minister, Jim Knight, said:
	"I would like to give further thought to whether, in a non-statutory form, the guiding principles by which Natural England will be governed should be published or made available to the Committee".—[Official Report, Commons Standing Committee A, 21/5/05; col. 51.]
	I have not had sight of any such guiding principles that the Minister mentioned. I wonder whether they have been drafted or published, or whether there is any intention to do so before the Bill proceeds any further through the House, because it would be extremely helpful to those of us who are deciding what to do about this matter.

Baroness Young of Old Scone: I support the sentiment of the amendment if not its exact terms; it could do with a little additional clarity. I speak from my background as the president of a wildlife trust, as president of the British Trust for Ornithology and the vice president of the RSPB.
	The five basic elements of Natural England's general purpose as laid out in Clause 2(2) are very important. Noble Lords will recall the slightly bad tempered debate that we had last time in Committee; there was some loose talk in the Lobby afterwards that we should perhaps just abandon Clause 2(2), since it would remove many of the amendments that had up until then been put forward, because of the disagreements about the fine grain of its wording. It is an important elaboration of the role of Natural England. Indeed, with one of my other hats on as chief executive of the Environment Agency, I would be extremely grieved if it disappeared, since it would then be creating a body that appeared to have very similar purposes to the Environment Agency. The five elements of the elaboration are important, and in most cases I suspect that they will not come into direct conflict. One of the important roles of Natural England will be to find cunning ways to deliver on all the objectives in an integrated way.
	There is no doubt that conflict can occur; I say that as a former chairman of English Nature. On many occasions we were faced with propositions where we had to make extremely difficult decisions about balancing the much more limited purposes of English Nature for biodiversity and conservation in the face of real pressure for economic development, increased access and increased recreational development. Considerable work has been done in the past few years on the research base and the evidence of the impacts on wildlife and landscape of access and recreational development. I draw the Minister's attention to some examples that were given in the briefing from the Wildlife Trust, the RSPB, the Woodland Trust and the Council for the Protection of Rural England. The RSPB has collated all the research on issues where there is a conflict between access and birds, and the British Ornithologists' Union held an extremely important and definitive conference last year on disturbance and its impact on bird population trends. The report on that conference will shortly be published, and I will provide the Minister with my references, because that publication will demonstrate that in some circumstances recreation has a real impact on conservation.
	It is not only what I would call quiet access. Natural England will also come under pressure from all quarters for increased recreational and economic development, particularly as the drying-up of other sources of income in the countryside increases the need for landowners to diversify. There will also be pressure for recreational facilities to back up the increased housing development that we will see in the countryside. We will see holiday developments and golf courses and developments of the Jeremy Clarkson style, if I may designate them like that, such as jet skis and war games. The pressure will be pervasive, and we must seek to ensure that the sorts of tourism and leisure developments that depend heavily on the abundance of wildlife and the natural beauty of the area do not in fact undermine that very wildlife and that very beauty in seeking to deliver social and economic benefits.
	I hesitate to give examples, because in many cases I have been involved in them. There are two where I was only on the periphery and mercifully they are outside England and Wales. The funicular up the Cairngorm was a highly unnecessary development, which is a blot on the landscape. There is also the much lamented visitor centre in the Burren in Ireland which, at the end of the day as a result of a European edict, was quite rightly demolished, having been built inappropriately in a highly sensitive area.
	I was quite taken aback by the Natural England partnership briefing for our Committee stage. It tried to assure us that the open access provisions of the Countryside and Rights of Way Act 2000 have not resulted in irreconcilable conflict with biodiversity. I gently challenge that position; it is too early to judge the real impact of further open access. Indeed, that open access in the Countryside and Rights of Way Act was to wide open spaces; to mountain and moorland, upland and downland. The research evidence is indicating that linear access in restricted areas—such as along riverbanks or coasts—disturbs wildlife the most.
	I am not saying that it is universal. There are many rivers and coastal areas that can be opened up to access, but in those sensitive areas where the concentration of people, wildlife, plants and animals in narrow strips is of particular importance, biodiversity really must be predominant. So, pressure on Natural England further to expand open access provisions will, from time to time and on rare occasions, result in more significant and irreconcilable conflicts between its purposes.
	I take the points of the noble Lords, Lord Carter and Lord Judd, that the amendment possibly needs a little tightening up and clarification. Personally, I would add the words "significant and irreconcilable" to demonstrate that we are talking only of extreme occasions. But on those occasions, Natural England needs a clear steer from Government, to support it in doing the right thing when facing that sort of pressure and significant or irreconcilable conflicts between elements of its purposes.
	The Minister may well say, as he did at Second Reading, that adequate assurances have already been given that Natural England will be a trenchant champion for the environment. There have also been assurances, as already mentioned, in another place that biodiversity and landscape will take priority in national parks, SSSIs and nature reserves. I welcome those assurances but, as has already been said, there are elements of biodiversity and landscape outside protected areas that nevertheless need to be considered.
	I am sure that the Minister will also say that it is self-evident from Clause 2(1), on general purpose, that conservation of the natural environment is pre-eminent. If that is indeed self-evident from the Bill, and already sufficiently clear in his view, I would welcome the Minister saying so on the record tonight. That would mean he was supporting the view that—if your Lordships will pardon the technical term—if push comes to shove, biodiversity and landscape will take priority in those rare instances where increased access, recreation or economic development cannot be accommodated without significant and irreconcilable risk to them.
	That signal from Government is vital to help Natural England deal with the pressure that it will face. If that is not to be in the Bill, we need clear assurances on the record from the Minister—and, I believe, we also need to incorporate this provision in the ministerial guidance to be given to Natural England. I will give way to the noble Lord, Lord Judd, if he insists. However, I am about to finish; perhaps the noble Lord would like to wait.

Lord Judd: Perhaps I may clarify one point. We are obviously agreed that there is great purpose behind the amendment. It needs to be examined seriously—there is no difference between us on that—and there seems to be some agreement that it could be better expressed. However, the noble Baroness has just suggested that economic development and biodiversity might, for example, be in irreconcilable conflict. That is where we get into the quagmire. I would argue that the vital importance of people being able to regenerate themselves in a completely different setting from their urban existence—and to enjoy the richness of the countryside—could be in conflict with economic development. When we start making those comparisons, we immediately begin to see the complexities. I am therefore inclined to think that whichever amendment is put forward, it would have to be strongly argued because the Government have tried to get everything in the Bill, and thus to say, "Right; Natural England now has the responsibility to get the right balance".

Baroness Young of Old Scone: I thank the noble Lord, but that really inclines me to believe that there is a need for a conflict resolution provision, because I believe that it is important for people to experience the joy of biodiversity and landscape. It is equally important to recognise that it is in no one's interests if, in enjoying them, we inadvertently diminish or destroy them. I would like the Minister to see his way to putting this strong steer, which I seek, into the guidance given to Natural England. If we destroy our biodiversity and landscape, then once they are gone, they are gone. I support the views of the right reverend Prelate the Bishop of Peterborough.
	I was going to say that the varied views which might have been voiced around the Chamber tonight are, in themselves, an example of why Natural England needs a strongish steer. Alas, we have not had quite such a variety of views as I expected. I have heard pretty strong support all around the Chamber for something to be done here; I was hoping that economic developers and people wanting paintball games across the country would be rising in their masses in the Chamber, so that I could demonstrate how much pressure there might be. Alas, they have stayed doggo so far. Nevertheless, I hope that we can urge the Minister to give that steer in some fashion or other.

Lord Carter: If this were to be adopted, would there be a conflict not in the general purposes of the Bill but between Natural England and the Environment Agency? I listened carefully to the speech of the noble Baroness, Lady Young of Old Scone, and she seemed to imply that there would be one.

Baroness Miller of Chilthorne Domer: Before the noble Baroness's remarks are too distant, perhaps I may say that she has drawn out some examples of where conflicts might arise between biodiversity and access. However, as no one has yet mentioned the issue of climate change, I should like to lay a different example before the Committee. It was brought to my attention by CPRE's strong objection to polytunnels in inappropriate places.
	I am sure that there are places where polytunnels are inappropriate when erected in large numbers. Nevertheless, they also enable food to be grown nearer the places where it is consumed, to extend the growing season and, by using geothermal energy, to do that in an environmentally friendly way. The other option is to ship in much of the salad crop from southern Spain, an area which has problems with its own water. That consumes air miles and is a good example of where there will be definite conflict; that is between having either a landscape sullied by polytunnels or a possibly greater but invisible ill for the landscape—given the effects from everything I mentioned that would contribute to climate change—because of the lack of ability to grow what will be consumed in this country. We will also have to consider that sort of conflict.

Lord Dixon-Smith: I want to speak as a farmer for a moment. In a sense, the words of the noble Baroness, Lady Miller of Chilthorne Domer—and, to a certain extent, those of the right reverend Prelate, if he will forgive me—lead into mine.
	We really need to demystify the countryside. Yes, it is glorious; no one appreciates landscapes more than I. However, in my early days of being in county hall four days a week, some non-agricultural friends often used to ask me how I managed to run a farm and yet spend all of my time away from it, doing other things. For a number of years, I used glibly to answer that while I looked after the farm for 10 minutes a day—and that that was all it required of my time—the good Lord had it for 23 hours and 50 minutes. I got away with that for a long time. Everybody accepted that it could probably be done; the truth was that there was growing inefficiency in the system, but that is neither here nor there.
	However, one day one of my more intelligent friends asked a question that stopped me dead in my tracks. He said, "Yes, Bill, I understand what you're saying, but have you considered what your farm produced when the good Lord had it for 24 hours a day?". You need to stop and think about that—but not very hard. There is a reality there and we need to recognise that the countryside is a totally artificial creation. It has been driven by economics. Latterly, in the past 30, 40 or 50 years, it has been driven hard by government policy and we have arrived at the present situation.
	If there is something mystical regarding the countryside that I might call divine inspiration, it is divine inspiration that brings about this sort of debate, where we sit down and look at the whys and wherefores of what we are doing. At present, the reality is that policy is driving us back towards the countryside that we used to know; we want to retain our biodiversity and everything else. That is fine, but as I have already said in this Committee, other factors are at work in what we are doing that will be tremendously destructive if we are not exceedingly careful.
	Such matters are not taken into account in this debate, but are the inspiration that lies behind my noble friend's amendment, and I understand why she has moved it. We need to be realistic about the countryside. It is not a divine creation. It is a creation of man in combination with nature. If there were inspiration, it perhaps came to man divinely—if we were lucky. I hope that that can continue, but we need a judgment.

Lord Rotherwick: I have great sympathy with my noble friend Lady Byford's amendment. Whether correctly drafted or not, such an amendment is needed. Do we really need to go down this route? The briefing from English Nature says that there certainly are areas that have been given exclusion; 44 SSSIs out of over 1,000 qualify for access and little over 1 per cent of SSSIs have been given partial exemption—I presume, for breeding seasons. That will come as a great relief to those, such as the noble Lord, Lord Judd, who rightly argue for not limiting open public access. We are not talking about a large area, but a very small area. That is important.
	Clarity is needed in this area. The countryside has an ever-increasing population. We are increasingly pushing the habitat of our wildlife on a daily basis. We often read in the press of wildlife whose numbers or varieties are diminishing through problems that we cannot understand. There is irreconcilable conflict in sensitive areas and fragile habitats.
	In my experience at home, public access was allowed across an area containing ponds and lakes and waterfowl in that area ceased to breed. There are now few waterfowl living there. That case was like the examples we are arguing about and it resulted in human beings winning over wildlife. I am anxious to ensure that in future we come second to wildlife in the pecking order.

Lord Chorley: There has been a fascinating interchange of views and I am swaying in various directions. It is clear that the board of Natural England will have to be a Solomon in its work. Much depends on the drafting. Here I am at one with the noble Baroness, Lady Young. We are talking about irreconcilable conflicts. My memory is not good and I do not remember whether the Sandford principle was incorporated into the national parks legislation in 1995—but I have always seen that as an irreconcilable conflict. Some conflicts are small and the SSSI issue is different from landscape issues.
	I am therefore not entirely at one with my noble friend Lord Judd. He is president of Friends of the Lake District and I am a mere vice-president; and we are both vice-presidents, as is the noble Baroness, Lady Miller, of the Council for National Parks. So I am torn. On the whole, I favour Sandford here, particularly as the Bill includes subsections (2)(a) and (2)(b)—the first two purposes—but that can be applied only when the chips are down.
	The noble Baroness, Lady Young, mentioned the Cairngorm funicular, which is a classic case where wild landscape has been destroyed. The noble Baroness, Lady Miller of Chilthorne Domer, mentioned the bluestones, a classic example of destroying a very sensitive part of a national park. They were massive developments, but many are not massive, so while we need to think more about the drafting, I favour something along the lines of the amendment.

Lord Bach: I echo the comments that this has been a fascinating debate with a huge amount of expertise from noble Lords. We are all grateful for what they have said. I agree with the noble Baroness, Lady Byford, that this is an important part of the Bill. It is at this stage, in a sense, neither here nor there whether or not her amendment is properly drafted. It sets up the debate that occurred in another place and is occurring here. I am sure that a lot of people are listening to what we say.
	I start by saying, as the noble Baroness, Lady Young, forecast, that we expect Natural England to be a strong—I shall not use the word "trenchant" just because she used it—champion of the natural environment. This new NDPB is being established to ensure that the precious resource of our natural environment is conserved, enhanced and managed for present and future generations. No one reading the purpose can be in any doubt that Natural England is an environmental organisation. It is about managing and enhancing places and nature and encouraging people to enjoy and benefit from them.
	Natural England will make decisions in the context of sustainable development. Through its environmental work, Natural England will contribute to sustainable development by actively seeking economic and social benefits for present and future generations. Sustainable development cannot be delivered by social, economic or environmental work alone. To that end, we hope and expect Natural England not to work in isolation, but together, often in close partnership, with existing bodies.
	Natural England will be one of the Government's main sources of expertise and advice on managing the natural environment, operating within a sustainable development context. The regional development agencies take a lead on economic issues, also within the context of sustainable development. I would not want to see a conflict resolution clause applied to the RDAs so that in their decision-making the environment always lost out to economic considerations—and I am sure noble Lords would not want that, either.

Baroness Miller of Chilthorne Domer: For the record, it would be interesting to have an example of where an RDA had, to date, made a decision that did not see economic interest winning out very strongly over environmental issues.

Lord Bach: As I understand it, no conflict resolution clause applies to RDAs; they make up their own minds. It is important that they should do so, bearing in mind the various issues that are set out in Clause 2 as far as Natural England is concerned. It has been suggested that RDAs give primacy to economic development, so Natural England should give primacy to the environment. Both take their decisions—or ought to—within the context of sustainable development, and we believe that helping people to enjoy the natural environment is an inextricable part of its conservation and enhancement. Bringing the two together in Natural England will help achieve the right solutions to conflicts.
	I do not think that the best solutions come out of adversarial debate between, for example, a public body with a total focus on protecting the environment and another with a total focus on economic development. That is why both the regional development agencies and Natural England are required to contribute to sustainable development. This reminds me of my promise to the noble Viscount, Lord Eccles, to share a definition of "sustainability" with the House. John Locke, the great English philosopher at the end of the 17th century defined "sustainability." Of course, when he uses the word "man" he covers humankind. He said:
	"Each man is entitled to the fruits of his labour, as long, and as much, and as good, is left for the next [man]".
	Not a bad definition. Our definition is a little more prosaic. Our strategy for delivering a better quality of life through sustainable development was set out in the UK sustainable development strategy, launched in March last year and copies of which are available in the Library. It explains the actions required to ensure that the care of the environment is an integral part of policymaking from the start, rather than just dealing with the consequences of neglect further down the line. The UK Government and the devolved administrations agreed to the following purpose:
	"The goal of sustainable development is to enable all people throughout the world to satisfy their basic needs and enjoy a better quality of life, without compromising the quality of life of future generations".
	It is against that background, or both definitions, that I believe this amendment to be wrong, both in principle and in practice. It would not lead to better protection for our most treasured natural resources, and it is inconsistent with practice elsewhere in the public sector.
	Why do I say that it is wrong in principle? Many of the proposals put forward for this Bill by noble Lords have aimed to secure the independence of Natural England. We support that concept, which is why we have created it as an executive, non-departmental public body. Natural England must have the freedom to engage in debate with interested organisations, customers and the public; then, in discussion with Ministers, to decide how it can best achieve its purpose. Frankly, that is the point of having a board of an independent NDPB. We do not believe that it should be told how to resolve any particular conflict. A conflict resolution clause would effectively be a legislative straitjacket. It would not give it teeth, as the noble Baroness, Lady Byford, suggested. It would mean extracting its teeth; it would have no teeth. It would have, effectively, no independence. It would erode its ability to make independent decisions on how best to achieve its purpose.
	That is the principle. Let me give two examples of some of the problems a conflict resolution clause would create in practical application. First, how would it apply to urban green spaces? There are many areas of damaged and derelict land around our major towns and cities. Some have been designated as SSSIs, or local nature reserves, because of their wildlife variety. Priority should be given to biodiversity in these areas, which might, for example, lead to restrictions on public access. Other areas have less value for wildlife and here it may be judged—and judged is the crucial word—that access should have priority, even if the effect is detrimental to some plants and animals. This amendment would prevent Natural England taking part in any such project, despite its role as a leading national body on access to the natural environment. A project might well proceed under local authority or voluntary-body leadership, but Natural England would be excluded. We do not think that is right.
	Secondly, how it would apply to a designed landscape, such as a Repton parkland? Many noble Lords will know much more about the great landscape architect, Repton, than I do. Restoring the historical importance of the landscape by, for example, clearing undergrowth, or dredging an ornamental lake, might be detrimental to some aspect of biodiversity. Natural England would be required, if this amendment became law, to give the highest priority, without question, to enhancing biodiversity.

Baroness Young of Old Scone: I wonder whether we might tempt the noble Lord to take the view that the two circumstances he has just described would not, in fact, straitjacket Natural England because they would not be significant and irreconcilable. On a day-to-day basis any public body tasked in the way Natural England is will be making these balancing decisions. To take his example of a Repton landscape, I am sure that dredging the lake and clearing the rhododendrons would probably not be regarded as significant or irreconcilable, but were the veteran tree at the bottom of the view, which harbours probably some of the most important beetle collections in Britain, to be demolished, that might be an irreconcilable and significant issue. It is a question of degree. I wonder whether the noble Lord might feel that.

Lord Bach: I am sure that the noble Baroness is right: it is a question of degree, but who is to decide if it is serious enough to be irreconcilable? It seems to me that Natural England, the independent body we are setting up should do so. It may be painful for it, but it should have the duty to decide when there are such conflicts, whether more extreme than the ones I have given by way of example, or ones which are truly irreconcilable. That is what we have to decide.
	In addition to being wrong in practice, the amendment would not help to protect our most treasured natural resources, such as SSSIs, Natura 2000 sites, AONBs and national parks, because the purposes of national parks are laid down in Section 61 of the Environment Act 1995:
	"(a) Conserving and enhancing the natural beauty, wildlife and cultural heritage of the areas specified;
	(b) Promoting opportunities for the understanding and enjoyment of the special qualities of those areas by the public".
	The Act goes on to make clear that any relevant authority,
	"if it appears that there is a conflict between those purposes shall attach greater weight to the purpose of conserving and enhancing the natural beauty, wildlife and cultural heritage of the area comprised in the national park".
	That is what is known as the Sandford principle, taken from the reverend Lord Sandford's recommendations in 1974 that enjoyment of national parks,
	"shall be in a manner, and by such means, as will leave their natural beauty unimpaired for the enjoyment of this and future generations".
	Natural England will be bound, like all other relevant authorities, to give greater weight to conservation in these specially designated areas. No other similar NDPB has a conflict resolution clause. A glance at the founding legislation of other such bodies in this area prompts the question: what problem is this amendment seeking to solve? The Countryside Agency, which has statutory duties for conservation, access and rural economic development does not have a conflict resolution clause. The board of the Countryside Agency, which noble Lords will remember is one of the organisations that will form Natural England, has not suggested that problems with its current statutory responsibilities should be resolved in this Bill by giving Natural England a conflict resolution clause.
	The Countryside Council for Wales and Scottish Natural Heritage, which combine most of the functions being taken over by Natural England, do not have a conflict resolution clause. Nor does the Environment Agency, where it could be argued that there is great potential for conflict between environmental and economic objectives. In short, we want Natural England to be more than the sum of its parts. It will bring with it the Countryside Agency's expertise in promoting positive access management and administering legal restrictions on access where necessary; English Nature's expertise of advising on nature conservation restrictions and enforcement of byelaws on national nature reserves; and the Rural Development Service's excellent track record, expertise and experience in administering the environmental stewardship schemes. We want Natural England to draw these together, sharing good practice and ideas and integrating delivery.
	Instances of irreconcilable conflict between access and conservation are rare in practice—and I believe that is the consensus around the House. English Nature's recent figures about access on Sites of Special Scientific Interest exemplify this point. More than 55 per cent of SSSIs are on open access land. These are our most valuable nature conservation and earth heritage sites. Yet, even here, in areas already recognised in legislation for their importance to nature conservation, irreconcilable conflicts are extremely rare. There are no SSSIs in access land in England where preventing access to protect flora and fauna all year round has so far been necessary. To date, only 0.3 per cent of SSSI access land is subject to partial access exclusion all year round, and only 1.06 per cent of SSSI access land has so far required a seasonal exclusion.
	Similarly, in the Peak District National Park—one of our most visited national parks—there has been access in place under the Countryside and Rights of Way Act 2000 since last September, but there have as yet been no major conflicts between access and conservation.

Earl Peel: I thank the Minister for giving way. I think what he says is largely right but, certainly in the Peak District, I can confirm that there has been great difficulty with dogs. Unfortunately, people have not been abiding by the byelaws. Dogs have been allowed to run pretty well free on too many occasions. There are all sorts of statistics on this which I do not have to hand, but I assure the Minister that the dog issue has been creating a great deal of difficulty in the Peak District National Park.

Lord Bach: I am probably rightly corrected by the noble Earl, Lord Peel. I am not saying that there have not been issues with dogs. The question is how we resolve those issues. That is done, it seems to me, by good management rather than some statutory clause in an Act.
	I am clear that it would be wrong for us not to continue to trust in this wealth of expertise, and instead provide Natural England with an inflexible decision-making framework from the outset. I am also clear, as was set out in the rural strategy, that Natural England is being established to take an integrated approach to nature conservation, biodiversity, landscape, access and recreation in the context of sustainable development.
	Before I invite the noble Baroness, Lady Byford, to withdraw her amendment, I shall mention a couple of things. The noble Baronesses, Lady Young of Old Scone and Lady Miller of Chilthorne Domer, referred to statutory guidance. I accept, in principle, that guidance on dealing with conflicts between objectives could be dealt with in the statutory guidance in a way which might satisfy concerns. Discussions with the Natural England confederation over the statutory guidance are at an early stage, and I will undertake to put conflict resolution on the agenda. I am prepared to look into it, but I make it absolutely clear that a black and white form of conflict resolution clause, such as that expressed in this amendment, would be no more appropriate to us in statutory guidance than it is in the Bill.

Baroness Miller of Chilthorne Domer: I am puzzled by the remarks of Mr Jim Knight in the other place, who implied that there would be such guidance. It is some time since the other place debated this, but that is what had led me to believe that such guidance would be available for us to look at.

Lord Bach: I do not think that there is any disagreement between what the Minister said in another place and what I am saying tonight. There is certainly not intended to be. I am choosing my words with some care on this issue.
	The confederation which will form Natural England is discussing a draft strategy with stakeholders, which was provided to Standing Committee A in another place. I will ensure that it is given to noble Lords if they would like to see it. Naturally, the confederation cannot take this process far until the board of Natural England has been appointed. It will be for it then to consult on how it will approach difficult decisions on priorities.
	I have a number of answers to some of the points made by noble Lords, but I think I have spoken for quite long enough and set out—I hope clearly—the Government's position on this important issue. On that basis, I invite the noble Baroness, Lady Byford, to withdraw her amendment.

Baroness Byford: I am extremely grateful to all noble Lords who have taken part in this debate—I was going to say "short debate", but it has been a full one. I think some 12 noble Lords have expressed their views. Whether they agree with my amendment, or think it is technically incorrect or could be improved, I am still grateful for their views.
	The noble Lord, Lord Bach, was not the Minister when we took the CROW Bill through, but his colleague, the noble Lord, Lord Whitty, is sitting at the back of the Chamber, and will remember well our discussions on the challenges and difficulties of encompassing and encouraging more people to the countryside while protecting it and the wildlife that they come to see, particularly in certain seasons.
	I smile slightly because I was recalling only the other day that I had quite a bit of pressure at one stage of the CROW Bill from one of the wildlife groups, which shall remain nameless. It said that it thought that I was not interested in getting the CROW Bill through. Obviously, the first part, being on the question of access—or the "right to roam", as it was then called—took a lot of discussion. I tried to persuade it that if we did not get the first part right, the very things it wanted to see, encourage and enjoy would be jeopardised. When the CROW Act was finally passed, one of the first groups to write to me was that one, saying that it was experiencing the problems we had debated, which it had not realised that we could have tightened up.
	I, too, had the question of dogs, raised by my noble friend Lord Peel, brought to my attention—I was going to say "my ear bent"—when I was on holiday in the Brecon Beacons only last September. When people, in their lack of understanding—rather than ignorance—walk through areas where they had not been able to go before and let dogs slip off the lead, it is quite likely that sheep, let alone any other wildlife, will be disturbed. Flocks will be intertwined. So my noble friend is quite right that there are issues there.
	The issue rightly raised by noble Lords who were not in favour of my amendment was that it might not be worded correctly, or whatever else. I am more than willing to take it back and think about it. I shall read everybody's contributions with interest, because they have been extremely helpful, whether they were in favour of it or not.
	I would like to say, particularly to the noble Lord, Lord Judd, that I am very anxious that people should visit the countryside. The contribution made by the noble Baroness, Lady Young of Old Scone, highlights even more why, on this occasion, a conflict clause is needed. In the old days, and certainly when we took through the Countryside and Rights of Way Act, we were talking about access for people to walk and enjoy, whereas nowadays a lot of the applications coming through are for what I would call active participation in the countryside. That is a real issue that we will develop more.
	I have young grandchildren and a young family. When they go on holiday they like to be active—not in the sense, perhaps, of walking on the moors, but they would like to be active, either doing water sports or in Centre Parcs, where there are more active things for them to do than purely to walk and enjoy. Certainly, the amendment is not there to preserve and keep the countryside from growing. The countryside must grow; I have no doubt about that. My real concern in tabling the amendment is that I believe that Natural England must be a champion for that, and I think the Minister has kindly suggested that he agrees. It is a question of how we ensure that. It is not for everyday dealings, but for those few times when the board will be asked to judge and decide how you balance these two opposing interests.
	I am enormously grateful, as I said earlier, to everybody who has spoken. It would take another half-hour to go through all the contributions. I do not propose to do that, but it is not because I do not appreciate the contributions made. At this stage, I am grateful that the noble Lord will perhaps think about some guidance, or at least have discussions within the department on it. I suspect that I shall return to the issue, but I would very much like to read carefully the contributions that everybody has made. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 123 and 124 had been withdrawn from the Marshalled List.]
	Clause 2 agreed to.
	Clause 3 [Review and research]:

Baroness Byford: moved Amendment No. 125:
	Page 2, line 18, leave out "keep under review" and insert "review at least once a year"

Baroness Byford: Amendment No. 125 is grouped with Amendments Nos. 128, 131 and 132. If noble Lords who tabled the other amendments in the group would forgive me, I would like to speak only to Amendment No. 125, listen to what they have to say about their amendments and perhaps come back to the Minister when he responds to them.
	Amendment No. 125 requires the new agency to keep under review its raison d'être and review it at least annually. This is a probing amendment to try and establish the intended nuances in the use of this phrase. One may keep under review by insisting that the subject to be reviewed is brought into every discussion it reaches when the body has to make a firm conclusion. It could be, "Right, gentlemen, we have decided that and we are all satisfied that nothing about the decision conflicts with our remit", and so on.
	Legislation sometimes lays down that there should be a review session every so often. For example, all school exclusions of longer than five days have to be reviewed annually by the governing body, mainly to ensure consistency and fairness. It is possible that an injunction to keep under review could be honoured more in the breach by relegating it to a periodic paper, to be discussed only if anyone raised an objection to something in it. Such an approach would tend to ignore omissions and might easily overlook matters that had occurred in early weeks and months of the period it covered.
	We feel that the Bill should be more specific concerning the frequency of that required review, and we would prefer the words that demand a formal report at least in the form of a board minute. That review should be at least annually. I beg to move.

Viscount Eccles: I shall speak briefly to Amendment No. 125. On page 47 there is a great list of things which Natural England has to do every year. A point that should be added is that that can become discretionary—that is, people can include in their annual report what they choose to put in it, rather than covering all the matters that are of importance. The value of the amendment is that it suggests that any report made should cover the whole waterfront and not be too selective.
	In Amendment No. 128 I am away from weighty philosophical matters. It may be that the Minister will be able to relax and say, "Thank goodness, we are down to practicalities". That leaves me to hope that he will have no problem in agreeing to my amendment. It intends to bring the relationship between Natural England and interested bodies into a better balance. Clause 3(2) currently reads:
	"When reviewing any matter, Natural England must consult such bodies as appear to it to have an interest in the matter".
	The wording is slightly different in the Explanatory Notes, which say that Natural England,
	"consults bodies that it considers to have an interest".
	If the amendment were approved, the subsection would read:
	"When reviewing any matter, Natural England must consult such bodies as have an interest in the matter".
	It is clear that the Bill, when enacted primarily as an enabling measure, will give rise to many declarations of interest, some of which are unpredictable and some of which can be controversial. For example, gardens are not much mentioned, yet the Royal Horticultural Society undoubtedly has an interest. No doubt Natural England would be willing to talk to the Royal Horticultural Society, but what about the horticultural development and research association or the Centre for Alternative Technology? Both have an interest in biodiversity and conservation.
	As drafted, the clause gives Natural England what amounts to a veto. Its officials will be busy people and would be able to say, "Well, with regret, we did not consider at the time that you had an interest". Any such conclusion would be subjective and difficult to challenge. As amended, Natural England would need to give due attention and weight to representations made to it, rather than being able to decide with whom it communicates. No doubt Natural England would be strong enough to safeguard its own position. Therefore, it does not need this right to decide unilaterally. This right is also undemocratic.

Baroness Miller of Chilthorne Domer: I shall speak to Amendment No. 131. Clause 3(3)(b) states that Natural England may,
	"commission or support (by financial means or otherwise) research into any such matter".
	The amendment probes whether Natural England should take account of existing bodies. It holds the purse strings for a lot of research that can take place into biodiversity and other issues. I am interested to know whether it will take account of existing bodies that have done a terrific job, and their research—for example, the county records office, funded by Defra, and the wildlife trusts, which continually research into all sorts of things; I should declare that I am a member of both Somerset and Devon Wildlife Trusts—and not simply take what may often be the quicker and easier route of going straight to consultants.
	Of course, universities now play an interesting part. As so much of their finance comes from independent consultancies, without the Minister saying clearly what is meant by the clause, there is a danger that Natural England could not take account of the bodies that have been in the business for a long time and commission research left, right and centre, to the detriment of the bodies that I mentioned—there are a number of others that I will not take the time of the Committee by mentioning now. By whom does the Minister imagine that the research may be carried out?

Lord Cameron of Dillington: In speaking to my Amendment No. 132, I should first like to apologise to the House because, in my enthusiasm last week, I forgot to repeat my interests—for the purposes of this Committee, they are as a farmer, landowner, rural businessman and chair of the Somerset Strategic Partnership.
	Amendment No. 132 is merely a mechanism to draw attention to the need to have acceptable common standards established by the JNCC, as proposed by the Bill. We have nothing against the clause but would like to be reassured on the rigour by which those standards are judged by the JNCC. They must be based on published, acceptable, scientific data. They should be based on sound peer-reviewed science.
	Furthermore, it would be preferable if they could be tested for practicality with some form of on-the-ground consultation. For instance, to take a fairly obvious example, there is no point promoting standards of management of heather moorland that undermines grouse shooting, when it is the shooting management that creates the habitat in the first place—that is the raison d'etre of the habitat; no shooting, no habitat. I should be grateful for some reassurance from the Minister on that point.

Earl Peel: I am grateful to the noble Lord, Lord Cameron, for having introduced Amendment No. 132. I appreciate the principal objectives behind the common standards as a means of assessing and monitoring the condition of designated sites. Some such mechanism is advisable if the statutory agencies are to carry out their functions effectively. However, from my experience in such matters, which is based entirely in the uplands, the system appears far from satisfactory.
	One of the fundamental difficulties rests in the lack of consultation between JNCC, Natural England as it will be, or English Nature as it has been, and land managers. We seem to have foisted on us what I can describe only as rather arbitrary condition assessments. All those who are responsible for the management of such sites have their views not entirely ignored but certainly pushed to one side. The lack of appreciation of practical management is the real problem. The most common complaint is that the term "favourable condition" too often relates to what I may describe as a past point in the ecological development of the site. That often seems to have little bearing on the purpose for which it is being used at the moment. That seems quite unrealistic, especially when such an objective is unlikely to be met with a realistic timescale and a site has historically been managed in ways inconsistent with the JNCC's objectives. I am bound to say that some of the criticism that I have read makes me wonder why the site was designated in the first place.
	In attempts to try to enhance some species that may have been present at some moment in the deep and distant past, such as some rare bryophyte, some current conservation gains could be lost that depend on the present management structure. In the uplands, the guidance suggests that favourable conditions should be assessed by reference to their original historic state. We could be talking about the Ice Age. Sometimes, I cannot see the point. There must be a more realistic approach to how those condition assessments are carried out. Furthermore, it is clear from comments that I have read and conversations that I have had that there is dispute—the noble Lord, Lord Cameron, referred to this—about many of the conditional assessments for the lack of clear science, which should be a prerequisite for any material change in the management structure of the site.
	I cite an independent ecologist who, quite recently, when commenting on the condition assessment of an area on the North York Moors National Park, said:
	"The way that results are reported can cause misunderstanding and damage relationships between moorland managers and conservation agencies. Many managers are proud of their moors and believe that they have been managed well for conservation, as well as for commercial purposes. It would be much better if the results could be presented in a more accurate light, which reflects the degree of failure, e.g. eight out of 10, rather than just 'fail'".
	She has a very good point. That is particularly important when vegetation condition may be a legacy of circumstances outwith the manager's control—for example, past air pollution or a severe wildfire created inadvertently by a visitor several decades ago.
	This is clearly just a probing amendment. I hope that the Minister will appreciate the real concerns expressed by managers of upland SSSIs. As I said, I can speak only for uplands SSSIs, but I am sure that similar situations occur in other parts of the country. I hope that we can try to instigate a more realistic approach to the assessment criteria, with greater co-operation and dialogue from the beginning. It is important for JNCC, English Nature and the Government to appreciate that the manager has just as much to offer as a scientist and should be consulted more often. I know that the Minister will agree with me. As the noble Lord said, we must make sure that we apply rigorous science in these conditions.

The Earl of Erroll: Amendment No. 128 is important. It should not just be up to what the people operating internally in the agency feel that they should pick. There should be a duty to consult with everyone concerned—not just with the people that they feel like. Everything that has been said about Amendment No. 132 has made me realise its importance. The danger is that the agency becomes a law unto itself. We must be careful about that. We could use many examples, although I cannot lay my hands on any at the moment, where such powers have been abused in the past.

Baroness Farrington of Ribbleton: It may be helpful if I briefly set out the rationale behind Clause 3. Natural England will be a key source of independent expert advice to government on environmental matters and a statutory consultee on many planning processes. To carry out that role, it is vital that Natural England remains up-to-date in matters relating to its general purpose. The requirement to consult others will help foster a culture of partnership working, ensuring that the expertise of other public bodies, such as the Environment Agency, and specialist non-governmental authority bodies, is used effectively and duplication avoided.
	Clause 3 also gives Natural England powers to carry out, to commission and to support research in matters relating to its general purpose. This power is clearly required for Natural England to develop and test new approaches or techniques aimed at helping to ensure that our natural environment is managed, conserved and enhanced. The term "research" is to be taken in its widest sense. Clause 30 defines research to include inquiries and investigations, and therefore empowers Natural England to carry out surveys and monitoring.
	The three amendments raise different but related issues, so I will address them one by one. Amendment No. 125 would require the Natural England board to carry out at least an annual review of all matters relating to its general purpose. I understand the concerns of the noble Baroness, Lady Byford, but ask her to consider the view that it would be best if the Natural England board were given responsibility to decide when reviews are needed. In some cases, it may want and need to review matters relating to its general purpose more frequently than annually, and in other cases less frequently. I know that the noble Baroness would not want the board to have to carry out unnecessary work to meet a legal duty, and I hope on that basis that she will withdraw this amendment.
	Amendment No. 131 would require Natural England to take existing bodies into account before commissioning or supporting research into matters relating to its general purpose. We are not opposed in principle to the intention behind the amendment, but this proposal deals with matters more appropriate to Natural England's corporate plan and management statement. I reassure the noble Baroness, Lady Miller of Chilthorne Domer, that discussions are already well advanced for jointly managing parts of Defra's and Natural England's research programmes. From my experience through involvement with the College of Agriculture and Horticulture in Lancashire and the University of Central Lancashire, I am well aware of the valuable contribution, to which the noble Baroness referred, of university departments, among others. With that reassurance, I hope that she will not press the amendment.
	Amendment No. 132 would remove Natural England's requirement to have regard to the JNCC's common standards on research into nature conservation. Natural England should, in common with its sister bodies in Scotland, Wales and Northern Ireland, have regard to UK common standards established by the JNCC. I have listened to the noble Earls, Lord Peel and Lord Erroll, and the noble Lord, Lord Cameron of Dillington, and I understand that there may be concerns about the lack of opportunity for review and comment on these standards before they are adopted and about the science underlying them. I particularly took note of the points made by the noble Earl, Lord Peel, about the need for proper consultation with land managers in areas with particular issues.
	The work of the JNCC in this area is subject to review by the individual bodies represented on the committee, and I understand that that also happens at a working level as standards are being prepared. In some cases, independent input is sought from outside the statutory conservation community. Additionally, the committee's papers are publicly available and its meeting is open to the public. Common standards are required on a wide range of topics, and it would not be appropriate for legislation to set out in detail how the JNCC should prepare them. Having said that, I understand the concerns and the strength of feeling of the three speakers about the amendment. I undertake to pass on all their comments about the need for wider consultation to the JNCC chairman and to suggest that his committee gives further consideration to the points that have been made today. I hope that will help noble Lords who have expressed their concerns about the matter.

Earl Peel: The amendment is clearly probing, and the noble Baroness has listened very carefully to what the noble Lord, Lord Cameron of Dillington, the noble Earl, Lord Erroll, and I have said. I was hoping merely that she would give the appropriate authorities the chance to consider it and to develop a more streamlined, effective and user-friendly system that would please us all, so I am extremely grateful for what she has said.

Baroness Farrington of Ribbleton: I thank the noble Earl. On Amendment No. 128 in the name of the noble Viscount, Lord Eccles, if a body has a particular interest, it must make itself known to Natural England to get its name on the circulation list. It is certainly not the intention for Natural England to have a veto against bodies that can express an interest and be involved in circulation about issues. On the other hand, it is not possible for Natural England to put on a circulation list every body that has anything to do with matters within Natural England's purpose. However, I hope that the noble Viscount is reassured that no restriction is intended by the use of the words,
	"as appear to it to have an interest".
	That is to give Natural England the power to stop the circulation list. It would not then be used to exclude people from the process. I hope on the basis of that reassurance that the noble Viscount will not feel the need to press his amendment.

Viscount Eccles: I am grateful to the noble Baroness. However, I still have some reservations about this. It is a difficult subject that raises many questions. Several noble Lords have discussed for over an hour whether there should be priorities, the conflicts, and how to reach difficult judgments. That position will persist. Given that we are being promised a strong, independent non-departmental public body, I really do not see why it needs the protection of being able to decide who has an interest. The noble Baroness shakes her head, but officials in non-departmental public bodies are good at drawing attention to and using the words set out in Acts of Parliament, and they do not need this protection. It is not just a question of a body being on the list; rather it is one of someone thinking outside the box and coming up with ideas. However, if they cannot get to Natural England, those ideas may never be heard.
	I feel strongly that we need to return to the nature of the relationships between Natural England and the people with an interest in the subjects covered by Clause 2. For the time being, however, I beg leave to withdraw the amendment.

Baroness Farrington of Ribbleton: I am sorry, but the amendment has not been moved because it is not the first in the group. I hope that the noble Viscount will consider carefully the words I used, because I sought to make it absolutely clear that this does not empower Natural England in any way to exclude people from the list of consultees. However, it is important to understand the range of matters which Natural England may review. If Natural England reviewed exclusively issues such as the value of wildlife on a patch of land or the case for designating a national park, that would be one thing. But it may wish to consider the impact of climate change on England's landscapes. In those broader areas it would be extremely onerous on Natural England if it were required to identify all the bodies with an interest in such an issue.
	The noble Viscount also said that not much mention is made of gardens. Perhaps I may put on the record that gardens and some other urban green spaces are included in Natural England's purpose. Garden biodiversity is extremely important in terms, for example, of bird populations. Like me, the noble Viscount may be an early riser and listen to the "Today" programme. He will know that thousands of people join in studies of our bird population as part of a national programme. I am sure he will agree that if part of Natural England's work is to look at the bird population, consulting every household taking part in studies of that kind would be far too onerous. However, the groups and organisations involved in this work could require Natural England to consult them wherever they deemed it appropriate.

Viscount Eccles: I thank the noble Baroness for that clarification and I shall read carefully what she has said. I also apologise for being a bit too quick to withdraw my amendment. If she will allow me, I shall deal with it at the right time.

Baroness Byford: I thank the Minister for her courteous response. I have listened carefully to what she has said. She suggested that the amendment may mean that Natural England could not review certain purposes more often. However, it is clear that the amendment does not say that. It specifies that matters should be kept under review not less than annually. In our short periods of debate on the Bill we have spent a considerable time debating the whole question of the general purpose clause. I have to say that I am very disappointed with the Minister's answer and I wish to test the opinion of the Committee.

On Question, Whether the said amendment (No. 125) shall be agreed to?
	Their Lordships divided: Contents, 29; Not-Contents, 55.

Resolved in the negative, and amendment disagreed to accordingly.
	[Amendments Nos. 126 and 127 had been withdrawn from the Marshalled List.]
	[Amendment No. 128 not moved.]
	[Amendments Nos. 129 and 130 had been withdrawn from the Marshalled List.]
	[Amendments Nos. 131 and 132 not moved.]
	[Amendments Nos. 133 and 134 had been withdrawn from the Marshalled List.]
	Clause 3 agreed to.
	Clause 4 [Advice]:

Baroness Miller of Chilthorne Domer: moved Amendment No. 135:
	Page 2, line 29, at end insert—
	"( ) Natural England shall advise the Government on policy about the natural environment and Ministers shall take due regard of such advice."

Baroness Miller of Chilthorne Domer: Amendment No. 135 would apply to Clause 4 which concerns the bodies to which Natural England should give advice. In this clause there are a number of references to public authorities; for example, local authorities and so on. One omission that my amendment aims to correct is the Government and Ministers. My amendment, which may be more than a probing amendment, seeks to discover how much teeth Natural England is supposed to have with regard to the Government and whether Ministers should pay due regard to advice given to them by Natural England.
	Defra is likely to have a very close relationship with Natural England. I do not expect there to be any particular problem. After all, Defra is its sponsoring body. However, we should look at other government departments, such as the ODPM, the DTI, the Department for Transport and the MoD, which has a particularly good record of paying attention to biodiversity matters. On several occasions I have had the great pleasure of looking at some of the projects which it is undertaking. There is no doubt that government departments and Ministers need to pay attention and should have a statutory obligation, like all other agencies and public authorities in Britain, to take regard of the advice of Natural England. Without that, the hours that we have spent debating the statutory purpose will count for very little. It is the decisions of government departments that often literally change the face of Britain in many ways. For that reason alone, this amendment is very important.
	It is also important to hear from the Government the exact demarcation—I am sorry that the noble Baroness, Lady Young of Old Scone, is not in her place—between Natural England and the Environment Agency with regard to the advice that is given on things natural. The Environment Agency has a very big part to play, albeit a more regulatory part very often. Natural England's role is to do research, to give advice, and so on. However, when considering estuaries and migrating fish, the role of the Environment Agency moves out of the regulatory and into far more of the research and advice-giving area. It is far from clear to me exactly what the demarcation between the two bodies will be. I believe that there may be in existence a memorandum of agreement between English Nature and the Environment Agency. I would be interested to know whether that will carry over into Natural England. If it is, will it carry over in exactly the form that it is in now or will it be adapted to take account of the much wider remit of Natural England?
	We referred to the marine Bill on the second day in Committee. The Government have said that they are preparing a marine Bill. I hope that the provisions of this Bill will be applicable to that Bill and that it will not need redrawing in great detail when we come to it. I do not expect that we will get this Bill perfect, but, as the Government have committed themselves to the marine Bill and know that it is coming in the near future, we should take account of that fact. With that in mind, and as we move into the marine area, the Environment Agency has responsibilities that one might expect to sit with Natural England.
	For those two reasons, I very much want to hear what the Minister has to say on how the Government expect the advice of Natural England to be converted into having some teeth when it comes to the effect on other government departments. I beg to move.

The Duke of Montrose: As we seem to be addressing "advice", two of our amendments are grouped with Amendment No. 135. My amendments are to Clause 4. On Amendment No. 138, I should like to determine whether this really relates to Clause 4. The explanation I have here is that Clause 11 confers on Natural England the right to charge for its services, and specifies things done under—I quote from the Bill here—Section 4. This shows my inexperience in things, but I believe that the terms are interchangeable. Can the Minister clarify that? If it is really intended to refer to subsection(4) of Clause 11, that is to do with licences. The word "give" is defined as bestow, impart, yield, grant and gift. The point of this amendment is to discover whether Clause 11 refers to the fact that it applies only in Clause 4(4)(a), or whether the use of the word "give" here is inappropriate. "Provide" or "supply" allow for the making of a charge and would be clearer in this context.
	Amendment No. 149 follows quite closely on the previous one about giving advice, but how do the Government imagine that Natural England will charge for advice that has been given unsought? Is this a situation where somebody might receive a bill for being told by Natural England that his plan to grub up a field of 50-year-old apple trees would be acceptable only if he first obtained a quantity of viable root-stock, so that the variety would not be lost; or would he be charged if he had sought its advice on how best to manage the operation? If somebody went ahead and did it without seeking the advice or consent of Natural England, might they then be charged for being told that they should not have done so?

Baroness Farrington of Ribbleton: Before I address these three amendments to Clause 4, it would be useful briefly to set out what Clause 4 does. One of Natural England's major roles will be as a key independent adviser to government, public authorities, its stakeholders and its customers. Ministers and the Government would fall under the definition of public authorities given in Clause 30, which I hope reassures the noble Baroness, Lady Miller of Chilthorne Domer. It will inherit the positions of English Nature and the Countryside Agency as statutory consultee in planning and other processes, and will be expected proactively to contribute to regional plans—I notice that the noble Earl, Lord Peel, is not in his place—such as the regional spatial strategies, which we will discuss in more depth when we move on to Clause 15.
	Clause 4 reflects the Government's expectation that Natural England will provide public bodies with advice on request. Clause 4 also gives Natural England powers to advise any person either on request or on its own initiative. In order for Natural England to become the powerful and determined environmental advocate envisaged in the rural strategy, Natural England will also have the power to ask public authorities for a written statement should it believe that its advice has been sought but not acted on.
	Amendment No. 138 seeks to leave out "give" and insert "provide". Having listened carefully to the noble Duke, I am not sure why this is considered necessary. Both words appear to be synonymous. There are examples of both usages throughout the Bill. On that basis, I am happy to accept the amendment in principle but would like to ensure that there is at least consistency within different clauses, and will undertake to ensure that appropriate amendments are tabled at a later stage.

The Duke of Montrose: I thank the noble Baroness for giving way. The distinction we have put between "give" and "provide" is that there seems to be a need that Natural England should be able to make charges. We felt that if "give" was the word used it might make it slightly anomalous.

Baroness Farrington of Ribbleton: I am not sure the noble Duke is not reading more into the giving of advice. We do not envisage in any way that Natural England will charge for unsolicited advice.
	Amendment No. 135 seeks to make it explicit that Natural England should advise the Government and that the Government should have regard to that advice. I am sympathetic to the rationale behind this amendment but I am not sure that this change would add anything of practical significance. Natural England's purpose makes it clear that the body is one of the Government's experts on natural environment matters and one of the principal means of delivering the Government's programmes. This clause already goes one step further. Ministers, as I said to the noble Baroness, are among the public authorities to which it applies, including the requirement that an explanation must be provided for any advice sought from Natural England which is rejected. We do not think it necessary to say more about Natural England's advisory role towards Government.
	I was also asked about the marine Bill. We do not want to say more at this stage about the situation in the marine area. As the noble Baroness, Lady Miller, knows, we are considering what changes are needed, if any, and we will consult shortly.
	Having said what I did about the public authorities, I do have some concerns about the precise working of this amendment. I cannot make any promises, but will consider the general aim of the amendment before Report in order to see whether the existing clause can be bolstered or made more explicit.
	Amendment No. 149 seeks to remove Natural England's power to give advice of its own volition. We think it essential that this function remains on the face of the Bill. Natural England's advice will often be challenging. If it is to be the powerful champion that I think all sides of the Committee are seeking, it must promote its views both to those who want to receive advice and, often, to those who do not wish to do so.
	I was asked about memorandums of agreement. Partnership working was one of the main themes of the rural strategy, and the Forestry Commission and Environment Agency were identified as key partners for Natural England. Rather than setting the relationship between the three bodies in stone in the legislation, a more flexible approach will be taken. Partnership arrangements covering respective roles and responsibilities and how these will operate in practice will be set out in agreements between those bodies; for example, work is already under way on a three-way memorandum of understanding between them. This flexibility is important, as it will enable the three bodies to adjust how they work together in the future, learning from experience and taking account of new challenges and tasks. The memorandum is being drawn up at this stage.
	It would be remiss of me, in asking noble Lords not to press these amendments on the basis of what I have said, not to agree totally with the noble Baroness, Lady Miller of Chilthorne Domer, about the valuable work often done by the MoD on land for which it is responsible in the field of biodiversity.

Baroness Miller of Chilthorne Domer: I thank the Minister for her very helpful reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 136 and 137 had been withdrawn from the Marshalled List.]
	[Amendment No. 138 not moved.]
	[Amendments Nos. 139 to 148 had been withdrawn from the Marshalled List.]
	[Amendment No. 149 not moved.]
	[Amendments Nos. 150 to 155 had been withdrawn from the Marshalled List.]
	Clause 4 agreed to.
	Clause 5 agreed to.
	Clause 6 [Financial and other assistance]:

Baroness Miller of Chilthorne Domer: moved Amendment No. 156:
	Page 3, line 20, at end insert—
	"( ) Natural England shall publish an annual account of the amount and recipients of such assistance."

Baroness Miller of Chilthorne Domer: This small amendment arises from Clause 6 which enables Natural England to give financial and other assistance to any person who appears to further its general purpose. The amendment seeks to discover whether Natural England would be expected to publish an annual account of any recipient of that financial assistance. It is a public body. It will be funded by and large with public money. If it provides financial assistance to any persons that should also be public knowledge. I beg to move.

The Duke of Montrose: The amendment has slight echoes of our request to have a review. As it might fulfil some of the role of the rejected proposal, I support the noble Baroness.

Lord Bach: As is currently the case with English Nature, the Countryside Agency and the Rural Development Service, Natural England needs to have powers to give grants to customers, the most obvious example being farmers who are part of the environmental stewardship scheme.
	Clause 6 is not limited to financial grants alone. Natural England will be able to provide assistance to customers and stakeholders in the form of grants, equipment and goods. This, together with the advisory powers in Clause 4, and powers to provide training in Clause 10, will leave Natural England, we believe, well placed to deliver its purpose through others with the freedom to provide assistance through the most appropriate means for any given situation.
	Amendment No. 156 would require Natural England to publish details of all those—and there could be many—who receive financial or other assistance from Natural England. On reflection, we believe that this requirement would be unduly onerous and could potentially require much effort to cover some relatively insignificant financial assistance which could be given to large numbers of people.
	There are already legislative mechanisms in place under the Freedom of Information Act and the Environmental Information Regulations 2004 to ensure that where reasonable requests are made for this type of information then, subject to a few narrowly construed exceptions, information is made available. Amendment No. 156 would appear to be aimed primarily at payments made to persons in connection with matters relating to the environment. It would be covered, therefore, under the heading of environmental information and, subject to very limited exceptions, be disclosed under the 2004 regulations.
	On the basis of the reassurance I have attempted to give, I hope that the noble Baroness will withdraw the amendment.

Baroness Miller of Chilthorne Domer: I thank the noble Duke for his support. I am slightly surprised at the Minister's reply. While I accept that information on assistance of a small nature might be too onerous to collect, larger grants of more than £5,000 or £10,000 would be a matter of public interest. For example, have they been distributed on a reasonably equitable regional basis or have they been concentrated in only one region? Many questions might arise. One could say that it is equally onerous to have to go through some freedom of information process to find such basic information. Perhaps the Minister could reflect on whether larger grants might fall under some kind of requirement. I recognise that this is not the stage at which to press such an amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 157 and 158 had been withdrawn from the Marshalled List.]
	Clause 6 agreed to.
	Clause 7 [Management agreements]:

The Duke of Montrose: moved Amendment No. 159:
	Page 3, line 24, leave out "appears to it to" and insert "would"

The Duke of Montrose: In moving Amendment No. 159, I shall speak also to Amendment No. 162. Both amendments deal with management agreements. Amendment No. 159 is a probing amendment, and I have three questions for the Minister.
	As the Bill stands, Natural England is not being asked to think hard about the kind of management agreements that it enters into. The only assessment that it will be required to make by law will be whether a management agreement,
	"appears to it to further its general purpose".
	At first sight, that seems relatively harmless, if not terribly effective. However, the Committee will note that Clause 7(2)(f) states that a management agreement may,
	"contain incidental and consequential provision".
	If noble Lords then turn to Natural England's incidental powers in Clause 13, they will see that they include power to,
	"acquire or dispose of property [and] borrow money".
	Will the Minister give the Committee guidance on whether, although Natural England is being given extensive incidental powers, its attitude in exercising them is expected to be comparatively relaxed?
	Secondly, surely if Natural England will have the power to impose restrictions on landowners and managers by entering into management agreements, it should have solid reasons for doing so, not only that it should not be required to tell the recipient under which of its various equally ranked purposes it reckons that it is necessary to do so. Thirdly, will a landowner have a great deal of choice on whether to enter into a management agreement? That is slightly different from the issues that we shall discuss on Clause 8 and compulsory purchase orders, but it will be important none the less.
	Amendment No. 162 would leave out subsection (3) of Clause 7. Our concern is that the subsection will mean that if a farmer enters into a management agreement with Natural England, he might be unable to terminate it in the event that he chose to sell his farm. Here again we appear to be dealing with powers brought forward from previous legislation that, we feel, it is right to question.
	Even more difficult might be the situation where the owner or farmer unfortunately dies relatively young, leaving a widow and children not old enough to take the farm on. In those circumstances, a management agreement might prove an obstacle to the family achieving the best possible price, should they wish to sell and cease to run the farm. On the other hand, the existence of a management agreement might prove to be an asset in selling the property, but that cannot be known at the moment. There do not appear to be specific references to regulation, guidelines or codes of practice governing the agreements. Moreover, there is nothing in Clause 7 that binds Natural England to a particular code of conduct.
	Finally, there is nothing to indicate how an agreement may be ended if it proves unsatisfactory to either party. The Minister will wish us to understand that such matters will be dealt with in the normal course of reaching an agreement, but perhaps he can tell us what the current situation is. In the absence of any provision to that effect, we feel that subsection (3) should be removed. I beg to move.

Baroness Miller of Chilthorne Domer: We have similar suspicions to those mentioned by the noble Duke, the Duke of Montrose. Management agreements are a good way forward and comprise a system that has been used time and again by English Nature. However, there is no doubt that land management is changing fast. For example, we have just moved from one system of farm payments to another. There is no doubt that there is a wish to bring all our SSSIs up to a much more favourable condition more quickly. Natural England will be absolutely out to prove itself—I very much hope that it does—in a fairly short time, so I imagine that it will be keen on making and keeping the management agreements. That is why it is particularly important that we get them right.
	Amendment No. 160 would ensure that all the agreements should be,
	"subject to an appropriate code of practice drawn up by the Secretary of State".
	English Nature assures me that there is already such a code and that therefore the amendment is unnecessary, which is no doubt what the Minister will say. However, that code was drawn up for the much narrower purposes of English Nature. We have established this evening that Natural England will have some much wider purposes; even if Clause 2 ends up being amended slightly, Natural England's purposes will still go much wider than English Nature's. Therefore, I cannot believe that a code of practice drawn up for English Nature will be suitable in its entirety for Natural England, which will address some very different issues.
	Amendment No. 161 would delete paragraph (f). That paragraph, which the noble Duke also did not like, is so wide that it could provide for management agreements to be made for absolutely anything. At this stage, the amendment to delete it is a probing amendment, but of course I reserve the right to view the paragraph with even more disfavour if the Minister does not give a fairly rigorous reply.

Lord Bach: The aim of Clause 7 is to enable Natural England to enter into a management agreement,
	"with any person who has an interest in land",
	if influencing the way in which the land is managed would further Natural England's general purpose. Of course, management agreements are an essential and supportive tool used to secure a wide range of objectives. They are a real mark of partnership with landowners and occupiers. In the other place, responding to a specific concern, my honourable friend the Minister for Rural Affairs gave a reassurance that the wording of this clause did not mean that those who entered into such agreements with Natural England—for example, the landowner—could bind other interests in the land by its terms and against their will—for example, those holding shooting rights or common rights.
	Another concern has been expressed—not in the debate today—that the use of the word "impose" in relation to obligations and restrictions is contrary to the spirit of partnerships and represents an imposition of Natural England's will. That is not so. "Impose" is the word used in relation to obligations and restrictions in the various existing management agreement powers available to English Nature and the Countryside Agency in the relevant legislation. It is a familiar and long-standing term, and nothing is changed. To answer the noble Duke's third question—I will come to the first two in due course—I should tell him that agreements are entered into voluntarily and any obligations or restrictions imposed by the agreement are accepted as part of the bargain. Therefore, a landowner has a choice whether to enter into a management agreement, and agreements can be reached only by mutual consent.
	Clause 7 harmonises the previous position, whereby Natural England's constituent bodies had different powers, suited to their particular purposes, for entering into management agreements with land managers. That broad power covers the whole of Natural England's purpose and so simplifies the current position by effectively integrating the existing powers. Apart from agreements and schemes wholly within Natural England's design and remit, it is also possible that certain co-funded agri-environment agreements could be administered directly by Natural England under the power.
	Amendment No. 159 implies the removal from Natural England of the decision on whether a particular negotiated management agreement will further its own general purpose. The issue is left somewhat open and could invite challenge by others whose motives might serve neither the interests of Natural England nor the prospective agreement holder. The prospective holder, with the assistance of any advisers, is perfectly capable of deciding whether to make the commitment. If other persons were to intervene in a debate, resources would be wasted, agreements would be delayed and nothing would be usefully gained.
	The noble Duke's first point, about which the noble Baroness, Lady Miller, was also exercised, was about the expression "incidental powers". Clause 7(2)(f) states:
	"Contain incidental and consequential provision".
	The incidental powers in Clause 7 are different to the incidental powers in Clause 13 referred to by the noble Duke. Those in Clause 7 are incidental only to the management agreement requirements themselves. There is no question of them involving borrowing money or the other items that are referred to in Clause 13, which we will debate in due course. It is a restricted use of that expression. His second question was on whether and why you must have solid reasons for management agreement. That is because the clause is an enabling power. The reasons for the management agreement will be set out elsewhere. One example is to receive an agri-environment payment.
	Amendment No. 160 would require that the exercise of the management agreements power by Natural England would be dependent on there being a code of practice. I do not believe that the amendment is necessary, for reasons that I shall try to explain. Apart from agri-environment agreements, English Nature already has in the region of 2,700 existing management agreements in place with landowners and managers of SSSIs. Those will remain under their current terms but by virtue of other provisions in the Bill will in future be administered by Natural England under the general enabling power for agreements. They will therefore come within the authority of the provision on transfer and will continue as before with no impact for their holders as to the terms on which they were made.
	Agri-environment schemes already have clear rules and procedures, and use of the existing SSSI and nature reserve management agreement powers by English Nature is governed by guidance issued by the Government in February 2001: the Guidelines on Management Agreement Payments and Other Related Matters issued under the various provisions, including Section 50 of the Wildlife and Countryside Act 1981. Section 50 provides for guidance concerning SSSI and nature reserve management agreements, and by virtue of Schedule 11(94) that will in future cover use of the Clause 7 powers for those purposes. Coupled with the provisions at Clause 15 for the Secretary of State to give guidance to Natural England on the exercise of its functions, there is sufficient scope for advising or influencing the way in which Natural England will exercise its powers to enter into management agreements. We do not think that a further requirement for a code of practice would be helpful.
	Amendment No. 161 would remove the provision for incidental and consequential provisions; I have attempted to cover that already. Amendment No. 162 would remove a critical provision from Clause 7. It is essential that agreements can be secured for the necessary duration if they are to produce the desired outcomes, some of which may take considerable time to emerge. That is particularly so where significant commitments are entered into and perhaps significant capital works are supported upfront with public funds. That is true for English Nature agreements and the co-funded agri-environment agreements, where the normal minimum term for such agreements, as stipulated by EU rules, is five years. The normal default position is that an agreement continues—the noble Duke asked about this—should the agreement holder relinquish his interests in the land to another. Clause 7(3) makes it abundantly clear that, unless the agreement says otherwise, it will be binding on successors to the interests of the original agreement holder. That is not new; the same principle is already enshrined in the management agreement provision in Section 39 of the Wildlife and Countryside Act 1981, and experience of the past 25 years has given us no grounds to review that position.
	Subsection (3) again provides that Natural England will have the same ability to enforce the terms of the agreement against the successors as it would have against the original agreement holder. Once that continuity is made clear, it is implicit that Natural England must also honour its obligations to the successors, who will have available to them any beneficial terms contained in the agreement that were available to the original agreement holder.
	I have done my best to answer the important points made in this brief debate.

The Duke of Montrose: My Lords, I thank the Minister for going into that detail, as we raised a number of issues, and he has certainly tried to deal with quite a few. I also thank the noble Baroness, Lady Miller of Chilthorne Domer, for supporting the elements of my amendments that she spoke to.
	It is interesting to realise that a code of practice is already in place and being used by English Nature. The only thing is that nothing draws people's attention to that fact other than our debate. The noble Baroness, Lady Miller of Chilthorne Domer, made a sound point, for it is something that could be checked and slightly reviewed, because of the enlarged powers proposed for Natural England.
	The Minister also made a useful point—again, not mentioned in the Bill—that the making of an agreement was actually subject to agreement. There is no particular power for Natural England to force the agreement. I will read what the Minister said more carefully in Hansard when it appears tomorrow.
	The fact there is a default position of five years perhaps answers, in some ways, the question of the ongoing value of an asset when something untoward happens. It would be interesting if the Minister was prepared to see whether, when agreements were drawn up, some escape clause could be provided if the agreement happened to be for a longer time. That difficulty might need to be overcome, but in the mean time I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 160 to 162 not moved.]
	[Amendments Nos. 163 to 170 had been withdrawn from the Marshalled List.]
	Clause 7 agreed to.
	Clause 8 [Experimental schemes]:

Lord Geddes: I must advise the Committee before calling Amendment No. 171 that if it or Amendment No. 172 is agreed to, I will not be able to call Amendments Nos. 175 or 176, due to pre-emption.

Earl Peel: moved Amendment No. 171:
	Page 4, line 25, leave out subsection (4).

Earl Peel: Clause 8(4) would give the Secretary of State the power to authorise Natural England to compulsorily acquire land for the purposes of implementing experimental schemes. Given the extensive powers afforded to the new body to enter into management agreements, it really seems somewhat excessive for compulsory purchase to be an option.

Lord Bach: I apologise for interrupting the noble Earl so early in his speech. He thinks that it must be good news, and it is. We think that there is something in what he has said already, about compulsory purchase orders being a part of the Bill.
	Experimental schemes are absolutely vital, as new delivery methods must be tried. However, as for allowing for compulsory purchase orders, even though they would be used very rarely indeed, I think I know which way the noble Earl's argument is going. I am not, of course, inviting him to sit down straight away; he must make his point. However, would he be so good as to bear in mind that we are inclined, if not to accept the amendment as it stands, to return with another view on Report regarding compulsory purchase orders?

Baroness Byford: I am grateful for that, as my noble friend will be. Does that also apply to the other amendments in this group?

Lord Bach: Yes.

Lord Carter: I only wish that I had moved the amendment—I would have obtained the concession from the Government. In the reflections that the Minister will undertake, I am sure that he and his officials are thinking about whether "acquire" always means compulsory purchase, or whether it applies to leasehold land or other forms of occupation. In relation to Amendment No. 176, will the Crichel Down rules still apply? There is no need for the Minister to answer now.

Earl Peel: From the very enthusiastic way in which the Minister leapt to his feet I assumed that it would be game, set and match with really good news, but it is certainly quite good news and I am extremely grateful to the noble Lord for that.

Baroness Byford: You need to beg leave to withdraw the amendment.

Earl Peel: Well, I did not actually move it. I beg to move.

The Earl of Erroll: I have two points. First, if compulsory purchase is to remain in the Bill, the landowner or whoever can sometimes appeal against it. That can be costly and, with the state of the rural economy at present, possibly unaffordable, so funnily enough one can be easily blackmailed. That should be borne in mind. I do not need answers, but I ask the Minister to consider these points.
	Secondly, the National Trust was exempted from this provision and I could not see any justification for that, because it may be just as guilty as anyone else of not being co-operative. If there is to be a principle that land and property can be expropriated from someone in a non-communist environment, I do not see why it should not apply equally to charities, government bodies and private landowners.

Lord Geddes: Things have got slightly inside out and back to front. Does the noble Earl want to reply?

Earl Peel: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 172 not moved.]
	[Amendments Nos. 173 and 174 had been withdrawn from the Marshalled List.]
	[Amendments Nos. 175 and 176 not moved.]
	[Amendments Nos. 177 to 188 had been withdrawn from the Marshalled List.]
	Clause 8 agreed to.
	Clause 9 agreed to.
	Clause 10 [Consultancy services and training]:

Baroness Byford: moved Amendment No. 189:
	Page 5, line 11, leave out "provide" and insert "commission"

Baroness Byford: I wonder whether I shall be as successful second time around. Perhaps that is expecting too much.
	We are asking the Government to clarify their thinking on how Natural England will work in practice. The amendment seeks to establish whether Natural England will use outside expertise rather than provide in-house training. Local authorities are changing in response to government diktat the way that they supply services to schools, to social services and to other bodies that have hitherto been, in effect, customers.
	The emphasis now is on operating as commissioners of services. Against that background, Natural England should also concentrate on commissioning training rather than providing it. Such a move has two distinct advantages, which I am sure will appeal to the Minister. First, the overheads are reduced. Natural England would not have to foot the bill for any shortfall in the taking-up of training programmes, whereas organisations such as Lantra or other bodies such as agricultural colleges will doubtless be prepared to develop, credit and deliver suitable courses. Secondly, by commissioning training, Natural England can monitor its delivery and review its effectiveness far more easily than if the organisation were carrying out both roles itself. It is a fairly short amendment; I beg to move.

Lord Judd: I urge the noble Baroness to consider that she may be over-prescriptive—almost ideological— on this point, if I dare say so. Surely we want flexibility. The great thing about "provide" is that it does not exclude commissioning, whereas "commissioning" would exclude Natural England doing something itself if it felt it were the obvious thing to do. I do not think we want to say that it must be one thing or the other. We want what is best for the particular situation. Some training may be in-house; a lot may be commissioned. I think "provide" is a more inclusive term than "commission".

Baroness Miller of Chilthorne Domer: I must come to the noble Baroness's defence on tabling this amendment, because it goes back to some of the earlier comments we made, notwithstanding the strong feelings of the noble Lord, Lord Judd, on this issue. There is indeed quite a big question mark over exactly how public money is spent, whether in duplicating things that local authorities might be providing—as mentioned by the noble Baroness—or by having consultants come in to provide them, very often in a more expensive manner, albeit that it may be cheaper because one does not have to retain staff annually. Of course there are judgments to be made.
	I think it is quite useful, for the record, to hear what the Government intend their agencies to do about consultants. We have seen in some areas of growth—regrettably, local authorities are one of them—very high expenditure on consultants. It is absolutely no coincidence that the Capitas of this world, for example, have their very own Private Eye column. When we look at some of the most profitable companies, they are very often those employing lots of consultants. I have no doubt that sometimes they do an excellent job, but they should not be doing a job to the exclusion of other agencies that are very capable of doing it, but simply lack the marketing skills to push themselves to Natural England. I support the spirit behind this amendment.

Earl Peel: It seems to me that Natural England would need the maximum degree of flexibility in these issues. My question is quite simple. Going back to the point made by the noble Lord, Lord Judd, does exclusively having "provide" in the Bill prohibit Natural England from commissioning? I do not think that it does.

Baroness Farrington of Ribbleton: I am in the happy position of being able to agree with virtually everything every noble Lord has said on this amendment. This amendment would prevent—in response to the noble Earl, Lord Peel—Natural England offering training directly, and require it to commission third parties. Natural England will always seek to achieve best value for money, and I am certain that this will often lead it to buy training and many other services from specialist bodies. The noble Baroness, Lady Miller of Chilthorne Domer, referred to local authorities and their experience, and to universities and colleges of agriculture.
	However, that will not always be the case. In order to further its purpose, Natural England needs to be able to use its expertise directly to help others to deliver. This clause allows, as my noble friend Lord Judd said, Natural England to run its own training courses when doing so is most cost-effective. This might be particularly appropriate, for example, in relation to the nature reserves it manages.
	The existing word also sends the positive signal that Natural England will engage directly with customers and stakeholders to deliver its outcomes. I think, on the basis of the virtual unanimity around the House, the noble Baroness will feel able to withdraw her amendment.

Baroness Byford: I am grateful for the support that I received from the noble Baroness, Lady Miller of Chilthorne Domer. I am always glad to have the contribution of the noble Lord, Lord Judd. On this occasion, I do not necessarily agree with him, which is not surprising.
	I know that we are looking to the future so I should not be pessimistic, but experience suggests that training has sometimes been offered in-house which is not as cost-effective. The Minister's response to me was that work would be commissioned or provided when doing so was cost-effective. Somebody, presumably Natural England, has to make a decision on that.
	I certainly hope that the board of Natural England will think a bit about how it goes about its practical business in that way. Outside organisations could bring a wealth of additional experience to the concept of what the non-departmental body will achieve, which is very important, and I certainly do not wish to see them excluded. Although the Minister is shaking her head and saying that they are not—I accept that, because I always listen most carefully to the noble Lord, Lord Judd, and accept what he says—I do not think it amiss that we have had our very short discussion on it, so that both avenues might be kept open. All of us want to ensure two things: that it is cost-effective, and that the advice sought—or the training given—is of the highest quality.
	When I asked Defra—I think within the last year—how many consultants or advisers it had within the department, it was unable, as a body, to tell me. That is a fairly sobering thought, which I hope Natural England will bear in mind when it is established. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 190 and 191 had been withdrawn from the Marshalled List.]
	Clause 10 agreed to.
	Clause 11 [Power to charge for services and licences]:

Baroness Byford: moved Amendment No. 192:
	Page 5, line 23, leave out subsection (4).

Baroness Byford: This is a probing amendment designed to discover the nature of the proposed experimental schemes and the probable areas of land likely to be affected. We should also like to know what type of land is likely to be acquired, and its location relative to other land owned by the same person. If Natural England will look around for small parcels of land—say, at the edges of woods, fields or ponds, or close to riverbanks—there will probably be no important problems at all. If, however, the requirement is for a few acres in the middle of a field or wood, the knock-on pressures on that landowner could be significant. The price to be paid under compulsory purchase legislation may be inadequate to compensate for the difficulties of the farming in the rest of that land. Is there any overwhelming reason why Natural England should not purchase land in the open marketplace, in the normal way? I beg to move.

Lord Bach: With the greatest respect to the noble Baroness, I am not sure that her remarks were addressed to Amendment No. 192. Rather, they may have been addressed to another amendment. I may be wrong about that.

Baroness Byford: If that is the case, I apologise to the Minister. If not, it was:
	"Page 5, line 23, leave out subsection (4)".
	Unless I have got my papers completely wrong, I thought I was right. I apologise.

Baroness Farrington of Ribbleton: We are all at cross-purposes, because Clause 11 gives Natural England powers to charge for its services. The Countryside Agency and English Nature, for instance, currently make some charges for publications, maps, and publicity and information requests. It is reasonable that the body should continue to ensure that taxpayers' money remains focused on core objectives and to charge for any consultancy services it provides to private bodies.
	We appear to not be speaking to the same aspect of the same amendment.

Baroness Byford: I suggest at this late hour, as there is obviously some misunderstanding, that I just withdraw the amendment and perhaps speak to the Minister afterwards. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 193 to 202 had been withdrawn from the Marshalled List.]
	Clause 11 agreed to.
	Clause 12 [Power to bring criminal proceedings]:
	On Question, Whether Clause 12 shall stand part of the Bill?

Baroness Byford: I hope that I am at the right place at the right moment. I still think that I was on the last one, but it is much easier to sort it outside the Chamber. Clause 12 deals with the whole criminal proceedings.

The Deputy Chairman of Committees): The noble Baroness has not indicated her intention to oppose Clause 12 stand part.

Baroness Byford: I am debating whether Clause 12 should stand part.

Lord Carter: There is no indication of that on the Marshalled List. It is normal to give an indication that you intend to speak to clause stand part.

Baroness Byford: It is not our fault. We have tried three times to get it put on. The Deputy Chairman was quite right to raise whether we had indicated our intention to oppose clause stand part. This is my third attempt to try to get it rectified. I am very grateful to the Deputy Chairman of Committees. It has been a difficult night. I am seeking to find out what range of criminal proceedings is intended and why it is considered necessary to empower a person without the normal legal qualifications to act for them.
	My knowledge of court procedures and their effectiveness is limited. I am, however, aware that the employment tribunals allow non-legally qualified persons to act on behalf of those seeking the court's help. I am also aware that from time to time there are mutterings about the amount of time wasted by persons who are not familiar with the rules and their established interpretation. How much worse will this be in a court which deals with a wide range of law? Will the operation of this clause be confined to, for example, wildlife offences, or will it find non- legals enforcing management agreements, acting in compulsory purchase matters or pursuing persons and authorities for non-payment of charges? It is difficult to escape the implication that if the Government consider it worth while to place such a clause in the Bill, there must be an expectation that there will be a considerable number of prosecutions, perhaps in the future. I apologise to everybody: it is not our fault.

Baroness Miller of Chilthorne Domer: I too was confused, partly because my list of groupings does not have clause stand part, but my far more knowledgeable noble friend Lord Addington says that it does not actually need to be there to debate clause stand part. So, now I understand where we are coming from, I think that the noble Baroness raises some interesting issues about the powers of Natural England. I look forward to hearing the Minister's reply.

Lord Bach: If we were wrong about Amendment No. 192 I apologise to the noble Baroness. Certainly, I am slightly taken by surprise by a Clause 12 stand part debate, but the noble Baroness is absolutely entitled. Let me do my best with my surprise to answer what she said.
	The clause provides certainty and removes any ambiguity in existing legislation where English Nature and the Countryside Agency's prosecution powers across their enforcement duties—for example, in relation to by-laws—are not clearly expressed in legislation. I want to make it clear that there is no intention for Natural England to become a wider enforcement body than the three existing bodies that will make up Natural England. By way of example, Natural England will be working with landowners and occupiers to encourage them to enter long-term agri-environment agreements that will help to protect and conserve our natural environment.
	Breach of such agreements will primarily result in administrative penalties by way of reduction or loss of all annual payments. However, where there are serious breaches of legislation, we believe it is useful for Natural England to be able to bring such cases to the criminal courts. It is implicit that Natural England will be able to prosecute only in areas within its general purposes, as set out in Clause 2. Will it have more powers of enforcement? There is no intention for Natural England to become a wider enforcement body.
	The reason for mentioning the power in the Bill at all is simply to clarify the position. Although the Schedule 5 substantive alterations to wildlife inspector powers within the enforcement provisions in the Wildlife and Countryside Act and the protection of badgers, deer, and seals Acts will in many instances involve entry and inspection by Natural England inspectors—I have no doubt that we will debate that in due course—there is no present intention to expand the number of wildlife inspectors above those currently employed by our regional development service. The additional powers of entry will primarily assist Natural England with the necessary routine checking of wildlife licence compliance. Criminal proceedings are used only as a last resort or where there has been a blatant abuse of wildlife legislation.
	Where an offence is suspected to have been committed and further evidence is required to be taken with a view to possible prosecution, a Natural England inspector will normally expect to call on the assistance of special Defra-trained investigators experienced in collecting evidence for the purposes of criminal proceedings. Such Defra investigators may be authorised as wildlife inspectors for the sole purpose of investigating a suspected offence.
	Will Natural England be seen as having a similar enforcement role to the Environment Agency? The simple answer is no. The noble Baroness asked about non-legally qualified persons pursuing criminal actions. I must tell her that it is not yet decided whether legally qualified persons will be employed by Natural England but, in any event, where a case is taken in the name of Natural England, it can still bring the case using outside prosecutors. I stress that there is no intention for Natural England to become a wider enforcement body.
	I hope that that goes some way to answering the questions raised by the noble Baroness.

Baroness Byford: I am grateful to the Minister, especially as he was not expecting to respond to this debate, for which I again apologise. Perhaps I may draw his attention to a couple of other things. The more I read the Bill, the more I am alarmed by some of its far-reaching consequences. The more I cross-reference parts of the Bill to other parts, the more apprehensive I feel about some of the hidden effects. That is worth sharing with the Committee.
	For example, we learn from Clause 54 that those who are responsible for wilfully damaging SSSIs may be liable to a fine of £20,000. But if we turn to Schedule 10, we find that someone who objects to being questioned by a levy board will be liable not only to the highest possible level of statutory fines but to a two-year prison sentence. So someone who is convicted of damaging an SSSI will have a lighter punishment than someone who refuses to "provide information" or produce documents "of a description so specified". He will be liable to a far higher penalty.
	Even worse, to my mind, is the fact that if someone tries to prevent an officer entering his property, he is liable to the same heavy penalty. I suggest that the punishment will not fit the crime in some cases. As the Minister was not expecting me to speak to clause stand part, I should be grateful if, between now and Report, he would consider this further to see whether the Government accept that proportion has gone out of the window for some of the offences. That is why I was opposing clause stand part.

Clause 12 agreed to.
	Clause 13 [Incidental powers]:

Baroness Byford: moved Amendment No. 203:
	Page 6, line 3, leave out paragraphs (b) and (c).

Baroness Byford: This is a simple, clarifying amendment that seeks to identify how exactly and to what extent Natural England will use its so-called incidental powers. I have been reassured in consultation that it is quite natural for a public body to have incidental powers, but I am slightly alarmed that under Clause 13 Natural England may,
	"do anything that appears to it to be conducive or incidental to the discharge of its functions".
	The clause continues:
	"In particular, Natural England may . . . acquire or dispose of property",
	or "borrow money".
	That seems to be a remarkably wide-ranging description of powers that are meant to be merely incidental. In my layman's reading of the clause, if Natural England decided that it wanted to carry out a biodiversity function on a farm, it would be perfectly able to do so under the clause, overriding the management agreements and constrictions that have already been heavily debated.
	Will the Minister tell us how Natural England will be financed in the future? In earlier debates, we talked about start-up clauses and the costs and savings. Certainly, the review by the noble Lord, Lord Haskins, was clear about two things: first, the body should reduce regulation; secondly, it should reduce costs. We have debated those costs, and the Minister has kindly written to me about them, but I am talking about future costs. Will Defra or other departments give grants so that Natural England can maintain the very nature of what it is supposed to be doing, or might Natural England look elsewhere for funding; for example, from the National Lottery?
	Will the Minister comment on the article in Monday's edition of the Daily Telegraph, which said:
	"'Green' farms face 40pc cut after EU deal by Blair"?
	That suggests that there will be great pressure on money available through the Rural Development Service for the agri-environment agreements. If so, what will happen to the bodies and to the agreements that farmers and former bodies have had? I understand that money is likely to be obtained from the National Lottery, which slightly alarms me. I must question whether this is the right place for the funding of such a major new non-departmental public body, because on the whole the lottery is a one-off available funding source. If it will be competing with other bodies that might want to appeal to the lottery for grants, will it have the prime pull on that money, and if so, is that not likely to jeopardise other smaller bodies that want to appeal on their own behalf rather than through Natural England to gain extra grants. There is therefore quite a large question mark on the future funding of Natural England. I beg to move.

Lord Jopling: When I read Clause 13, my mind goes back—probably a good deal further than that of many noble Lords who sit in the House at this late hour—to another place in the late 1960s, when I spoke on behalf of the opposition and when the then Minister of Agriculture, Fred Peart, who was much admired by a great many of us and who became Leader of another place and then Leader of your Lordships' House, introduced legislation to set up rural development boards.
	Those rural development boards from the 1960s also had a power to acquire and dispose of property. I recall that the organisation was set up in the north Pennines, with its headquarters in my old constituency of Appleby. One of the things it did was to acquire a very run-down estate owned by the trustees of a Member of your Lordships' House who is now deceased and whose name I shall not repeat. The board purchased that property with a view to setting up a project of great social and economic engineering in Nidderdale. At the time the project generated deep hostility because it was felt that it was not for a state organisation to acquire large swathes of country, whether in Nidderdale or elsewhere, in order to carry out the sort of social engineering which I think is implicit in Clause 2, covering Natural England's general purposes.
	I have a good deal of sympathy with the amendment. Call it déjà vu if you like, but I am anxious about setting up an organisation with powers to acquire and dispose of property and to carry out social and economic well-being policies, as described in Clause 2. Can the Minister tell us what he thinks Natural England will do if it acquires or disposes of property? If he cannot do so tonight, perhaps between now and Report he can consider whether the example of the rural development board set up in the 1960s is being resuscitated today. It really was a disaster and the board was wound up in the early 1970s, largely because of its grandiose plans to acquire swathes of the countryside in order to carry out social and economic engineering exercises. I hope that we are not retracing that disastrous step which, thank God, was cut off at its stocking tops in the early days.

Lord Renton of Mount Harry: Perhaps I may develop briefly the wider concern about finance mentioned just now by my noble friend Lady Byford. If we compare Clause 14 covering grants with Clause 13 covering incidental powers, it is difficult to work out where the financial decision about money will be made. Clause 14 states simply that:
	"The Secretary of State may make grants to Natural England of such amounts as the Secretary of State thinks fit".
	At the same time, as my noble friend on the Front Bench has just pointed out, Clause 13 sets out the specific possibilities for Natural England. She said also that perhaps those possibilities go a bit far.
	Is there not an essential contradiction between Clauses 13 and 14? On the one hand, powers and functions are given to Natural England, but in the very next clause it is clear that decisions on the amount of money available are taken away and put in the hands of the Secretary of State. On that basis, how can the board of Natural England reasonably plan its finances over a three-year period? Add to that the factor brought in by my noble friend Lady Byford. The current thinking is that because of the relative decline in the CAP budget and the fact that single farm payments are more or less guaranteed for the next seven years, the amount of CAP money coming forward from Pillar 2 for agri-environmental schemes is likely to fall very substantially. Indeed, we know that some people already suggested a fall of 40 per cent in the money. I am glad to see that the Minister shakes his head: I hope that he is right. It is therefore hard to see, looking at Clauses 13 and 14 together against the background of a diminishing CAP budget in relation to Pillar 2, where the money is going to come from. It would be helpful to have some guidance from the Minister.

Baroness Miller of Chilthorne Domer: I rise to raise some questions. I too was reading the two clauses together, but a different question was raised in my mind from that in the mind of the noble Lord, Lord Renton of Mount Harry. My worry would be that in Clause 14 the grant may be made subject to such conditions as the Secretary of State thinks fit, so Natural England may acquire the property subject to the money coming from the Secretary of State, who can impose any conditions that he likes, all of which might add up to the expression used earlier—social engineering. If we were conspiracy theorists or paranoid, that would be a worst-case scenario. The Minister needs to address our worries in that regard.
	I have a slightly less paranoid worry that the power, the grants, and this way of spending public money will encourage public money to be spent as the easy way out where management agreements and so on may be difficult and onerous. I have in mind, for example, the contrast between national parks—which were mentioned earlier—where voluntary agreements with landowners can produce outstanding results satisfactorily and much more cheaply to the public purse; and the easier option where a national park has chosen to buy itself out of a problem. That way of addressing issues, for example, simply by spending public capital on buying land—as I would fear—we need to question. I am glad that the noble Baroness raised the issue.

Lord Bach: There are two issues here: one arises out of the amendment which deals with the incidental powers in Clause 13; the other is an important issue around the future of rural development in this country, which the noble Baroness mentioned and on which the noble Lord, Lord Renton, is a knowledge expert. I have to put it like that because he is asking me a Question about it in a week's time—next Tuesday to be exact.
	If I do not go into huge detail on the point tonight, I hope that the Committee will forgive me. The noble Baroness, Lady Miller, is initiating a debate on rural affairs tomorrow, to which we are all looking forward greatly. I am also looking forward to answering the noble Lord's Question next Tuesday, but I will have a word to say about it. Let me deal with the first part: the incidental powers provision in Clause 13.
	It is a standard provision for any non-departmental public body; for example, the Environment Agency has equivalent powers, but there is frequently some cause or confusion around those powers. That is what the noble Baroness is getting at. Let me try to spell out briefly what they are about. Without such powers in Clause 13, Natural England would be able to do anything incidental or conducive to carrying out its functions. However, there can be doubts about what is or is not incidental or what is or is not conducive to the functions of an NDPB, so this provision makes Natural England's incidental powers clear. We are not in the business of setting up a trading company, so in common with all public bodies Natural England would be able to use these powers only in situations where it is helpful to do so to carry out its functions. That is a significant and important safeguard.
	The amendment would remove Natural England's express powers to acquire property and to borrow money. It might still be possible for Natural England to do those things as a matter of law, but it would not be in the Bill. We do not think that there is any danger in keeping those express powers. They are useful and will allow Natural England, for example, to take out a loan in order to buy land to provide study facilities. We do not see anything wrong with that. But Natural England would be able to borrow money or to buy land only—I stress, only—where the transaction is incidental or conducive to its own functions. In other words, these incidental powers are constrained by the scope of Natural England's functions.

Lord Renton of Mount Harry: What is the definition of "incidental or conducive" in this context?

Lord Bach: I have said that these are the equivalent powers that are given to other NDPBs. They are therefore not the purpose of a non-departmental public body, but are incidental powers in order to be able to make such a public body function in an appropriate way in carrying out its responsibilities. That is the best answer that I can give the noble Lord today. He may want me to reflect more on his question and to answer him in writing, which of course I will do.

Lord Renton of Mount Harry: I would appreciate that.

Lord Bach: So we believe that Clause 13 strikes the right balance and will enable Natural England to carry out its functions properly and efficiently. The budget was agreed as part of the EU budget deal in December with a seven-year ceiling of €69.75 billion, which is roughly—I repeat, roughly—equivalent to current spending; that is, for the present financial perspective, which is 1999-2006. This one is for 2007–13. The new budget will include spending for Bulgaria and Romania plus the current 25 member states. The agreed budget also increases emphasis on new member states' rural development expenditure—at least, €33.1 billion.
	However, the rural development budget for the EU 15 was cut in order to get a deal due to reluctance to further cuts in Pillar 1. Securing voluntary modulation was an important part of the budget agreement, certainly for the United Kingdom. Member states can voluntarily modulate up to 20 per cent of their Pillar 1 budget for use on Pillar 2 rural development expenditure. Unlike compulsory EU modulation, financing voluntary modulation does not have to be co-financed by member states before it is spent. It is a welcome flexibility to choose co-financing levels rather than to have to accept imposed levels. As the Committee will know, there is pressure from farming bodies against moves to increase modulation without co-financing.
	A number of further details have to be worked out. The agreed EU budget still needs European Parliament endorsement and the allocation of main funding—that is to say, outside convergence regions for all member states to be proposed by the Commission in line with the rural development regulation. The amount left to be allocated to the EU 15 from ex-guarantee will be €18.91 billion. Compulsory EU modulation will add approximately €7 billion across the EU, all of which must be match-funded by member states.
	That takes us to the article in the Daily Telegraph, which was referred to by the noble Baroness. While I encourage all Members of the Committee to look at that article, written by a most reputable journalist, I also encourage the Committee to read my letter, published in that newspaper today, which attempts to deal with some of the points on which we think that the article was wrong. My letter makes it clear that it is no secret that we wanted, as a country, to reduce mainstream CAP subsidy payments to provide funds for rural development. I believe the committee of the noble Lord, Lord Renton, would heartily approve of this. The agreed EU budget for rural development spending is roughly the same as expenditure in the current period. It is not true that the deal will cause a 40 per cent cut, I argue, in payments for green farming in the UK. The key to funding the new environmental stewardship scheme in England was agreement in December to allow transfers of up to 20 per cent from CAP subsidies to fund such schemes. We believe that is a significant step forward in our strategy to shift CAP funds to environmentally sustainable farming.
	It was also not true that only the first 5 per cent can be match-funded by government. Member states can choose the level of match funding that they allocate. Lastly, the article claimed that Defra Ministers have written a joint letter to the Prime Minister with the Environment Agency, RSPB and English Nature. Defra Ministers have not written such a letter. I could go on, but think that at this hour to say more about that settlement would mean that we have less to say when we come to debate these matters in due course.
	The noble Baroness asked about future funding of Natural England. Natural England will receive the core of its funding from Defra. A large part will be for the agri-environment programme. We expect Natural England to seek appropriate sources of income from other areas, as the Countryside Agency and English Nature have done. That could include the lottery, sources of targeted EU finding and even commercial sponsorship. It is for the lottery distributors to decide their policies for giving awards, and it would not be right to prevent Natural England from receiving lottery grants. Natural England will have a total budget of over £300 million.
	I hope I have gone some way to answering the points made in this debate.

Baroness Byford: The noble Lord has indeed gone part way to answering my questions, but has left some questions in the air. I am not going to press him at this stage. I thank my noble friend Lord Jopling for taking us down memory lane because it is important that, in planning for the future, we reflect on what worked in the past, and perhaps on where some of the disadvantages were. I do not know that the Minister has clarified or reduced his anxieties about it. My noble friend is shaking his head, and my head is going to shake in the same way. The noble Lord, Lord Renton, and the Minister will no doubt resolve his anxieties as regards his particular question.
	To return to the issue I raised on the long-term funding of Natural England, the Minister has suggested—I will have to read it carefully—that the main core funding will come from Defra. When he says "main core funding", is he talking about 50 per cent, 60 or 90 per cent? How much is actually committed at this stage from Defra or from other sources? How much of that money is going to be sought from other areas as the Minister has described? How much of the use of lottery and other moneys is actually desirable in the long-term interests of a non-departmental government body, and even further on those who might be applying to the lottery? Our concern is for organisations that work in the community which wish to seek lottery money. If they seek to cover or be involved in some of the aspects covered by Natural England, their moneys may not be forthcoming because the lottery could say that Natural England has applied for that particular purpose, and that it will distribute money as and when to causes it feels are worth while. Although I thank the Minister for his attempt in answering, we must return to this issue because it is unsatisfactory. If between now and Report he could let us know what degree of core funding is likely to come, that would be helpful. Perhaps a message is coming, so I will keep chatting for a minute. As I say, I am not at all happy that some proportion of that money will be sought from organisations such as the lottery that could grant money one year and not be in the position to grant it another. That does not give Natural England a good base financially. Perhaps the Minister has some news for me. No, I see that he does not. Then we will return to the issue later, but at this stage I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 204 and 205 had been withdrawn from the Marshalled List.]
	Clause 13 agreed to.

Baroness Farrington of Ribbleton: I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.
	House adjourned at sixteen minutes past ten o'clock.

Racial and Religious Hatred Bill

Bill returned from the Commons with the amendments agreed to.
	Wednesday, 1 February 2006.